December 2013 Immigration Update

1.         USCIS Announces E-Verify Anti-SSN Fraud Effort РUSCIS has announced an E-Verify effort to combat identity fraud by identifying and deterring fraudulent use of Social Security Numbers for employment eligibility verification.

2.         Temporary Accommodation for Form I-129 H-2A Petitions Has Expired  The Office of Foreign Labor Certification has stopped sending Adobe PDF copies of approved temporary labor certifications to H-2A employers and authorized representatives as of November 18, 2013.

3.         USCIS Warns of Scams Exploiting EB-5 Immigrant Investor Program  In coordination with USCIS, which administers the EB-5 program, the SEC has taken emergency enforcement action to stop allegedly fraudulent securities offerings made through the EB-5 program.

4.         USCIS Reminds Filipinos of Immigration Relief Measures Following Typhoon; US-CERT Warns About Scams  Following Typhoon Haiyan in the Philippines, USCIS is reminding Filipino nationals that they may be eligible for certain immigration relief measures if requested.

5.         DHS Proposes SEVP Rule  Among other things, the proposed rule would grant school officials more flexibility in determining the number of designated school officials to nominate for the oversight of campuses.

6.         USDA Postpones Release of 2014 AEWR Wage Data The new release date for the Farm Labor Survey report is December 5, 2013.

7.         DOL Publishes Three Final Rules Eliminating Obsolete OFLC Regulations  The Department of Labor has published three final rules eliminating Office of Foreign Labor Certification regulations that have been made obsolete by statutory or regulatory changes.

8.   Infosys Settles Visa Fraud and Abuse Case for Record $34 Million – Infosys has agreed to pay a record $34 million civil settlement based on allegations of systemic visa fraud and abuse of immigration processes. The company also has agreed to enhanced corporate compliance measures.

9.         Office of Foreign Labor Certification Deals With Backlogs After Shutdown  OFLC has implemented temporary changes to deal with backlogs resulting from the recent federal government shutdown.

10.         Visa Office Forecasts Changes in Some Employment Cut-Off Dates  The Department of State’s Visa Office has projected changes in some employment cut-off dates.

11.       OCAHO Substantially Reduces Penalties for Two Small Businesses; Fact Sheet Updated OCAHO reduced I-9related penalties substantially for two small restaurants. Also, the EOIR updated its fact sheet on OCAHO.

12.       State Dept. Updates Visa Reciprocity Tables  Among other things, the Department recently updated the document section for Somalia.

13.       USCIS Extends TPS for Somalis –  Acting Secretary of Homeland Security Rand Beers has extended temporary protected status (TPS) for eligble nationals of Somalia for an additional 18 months.

14.       ABIL Global: Turkey  The new Residence Permit Law will overhaul immigration in Turkey.

15.       Firm In the News

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Details:

1.        USCIS Announces E-Verify Anti-SSN Fraud Effort

U.S. Citizenship and Immigration Services (USCIS) has announced an E-Verify effort to combat identity fraud by identifying and deterring fraudulent use of Social Security Numbers (SSNs) for employment eligibility verification.

USCIS explained that an employer, for example, may enter information into E-Verify that appears valid, such as a matching name, date of birth, and SSN, but that was in fact stolen, borrowed, or purchased from another individual. The agency said the new safeguard enables USCIS to lock an SSN that appears to have been misused.

USCIS said this implements standards that have proven effective in protecting individual identity in other industries. As with a credit card company that can lock a card that appears to have been stolen, USCIS may now lock SSNs in E-Verify that appear to have been used fraudulently. USCIS said it will use a combination of algorithms, detection reports, and analysis to identify patterns of fraudulent SSN use and then lock the number in E-Verify.

If an employee attempts to use a locked SSN, E-Verify will generate a “Tentative Nonconfirmation” (TNC). The employee receiving the TNC may contest the finding at a local Social Security Administration (SSA) field office. If an SSA field officer confirms that the employee’s identity correctly matches the SSN, the TNC will be converted to “Employment Authorized” status in E-Verify.

Employer enrollment in E-Verify has more than doubled since January 2009, with more than 470,000 participating employers representing more than 1.4 million hiring sites. Approximately 1,500 new employers enroll each week. In fiscal year (FY) 2013, E-Verify was used to authorize workers in the U.S. more than 25 million times, representing a nearly 20 percent increase from FY 2012.

The announcement is available at http://www.uscis.gov/news/new-security-enhancement-helps-e-verify-deter-employee-fraud.

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.2.         Temporary Accommodation for Form I-129 H-2A Petitions Has Expired

The Department of Labor’s Office of Foreign Labor Certification has announced that it has stopped sending Adobe PDF copies of approved temporary labor certifications (TLCs) to H-2A employers and authorized representatives as of November 18, 2013.

U.S. Citizenship and Immigration Services (USCIS) previously issued an alert allowing H-2A petitioners to temporarily file Form I-129, Petition for a Nonimmigrant Worker, with a copy of the signed, certified TLC. To align with the Department of Labor’s return to normal practice following the federal government shutdown, USCIS’s temporary accommodation expired on November 29, 2013. Beginning December 2, 2013, USCIS will revert to its previous filing practice and will not accept any I-129 H-2A petitions filed without the certified TLC on blue security paper with original signatures.

The announcement is available at http://www.uscis.gov/news/alerts/temporary-accommodation-form-i-129-h-2a-petitions-set-expire-nov-29. Frequently asked questions about H-2A and H-2B signature requirements for electronically filed temporary labor certifications and the H classification supplement to the I-129 are available at http://www.uscis.gov/news/public-releases-topic/visas-h-2a-and-h-2b/h-2a-and-h-2b-signature-requirements-electronically-filed-temporary-labor-certifications-and-h-classification-supplement-form-i-129.

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3.         USCIS Warns of Scams Exploiting EB-5 Immigrant Investor Program

The U.S. Securities and Exchange Commission’s (SEC) Office of Investor Education and Advocacy and U.S. Citizenship and Immigration Services have jointly issued a warning to individual investors about fraudulent investment scams that exploit the EB-5 immigrant investor program.

In coordination with USCIS, which administers the EB-5 program, the SEC has taken emergency enforcement action to stop allegedly fraudulent securities offerings made through the EB-5 program. USCIS explained that business owners apply to USCIS to be designated as “regional centers” for the EB-5 program. Regional centers offer investment opportunities in new commercial enterprises that may involve securities offerings. The fact that a business is designated as a regional center by USCIS does not mean that USCIS, the SEC, or any other government agency has approved the investments offered by the business, or has otherwise expressed a view on the quality of the investment. The SEC and USCIS are aware of attempts to misuse the EB-5 program as a means to carry out fraudulent securities offerings. For example, in a recent case, SEC v. Marco A. Ramirez, et al., the SEC and USCIS worked together to stop an alleged investment scam in which the SEC claims that the defendants, including the “USA Now” regional center, falsely promised investors a 5 percent return on their investment and an opportunity to obtain an EB-5 visa. The promoters allegedly started soliciting investors before USCIS had designated the business as a regional center. The SEC alleged that while the defendants told investors their money would be held in escrow until USCIS approved the business as eligible for EB-5, the defendants misused investor funds for personal use, such as funding their Cajun-themed restaurant. According to the SEC’s complaint, the investors did not obtain even conditional visas as a result of their investments through the USA Now regional center.

In another case, SEC v. A Chicago Convention Center, et al., the SEC and USCIS coordinated their efforts to halt an alleged $156 million investment fraud. The SEC alleged that an individual and his companies used false and misleading information to solicit investors in the “World’s First Zero Carbon Emission Platinum LEED certified” hotel and conference center in Chicago, including falsely claiming that the business had acquired all necessary building permits and that the project was backed by several major hotel chains. According to the SEC’s complaint, the defendants promised investors that they would get back any administrative fees they paid for their investments if their EB-5 visa applications were denied. The defendants allegedly spent more than 90 percent of the administrative fees, including some for personal use, before USCIS adjudicated the visa applications.

USCIS noted that as with any investment, it is important to research thoroughly any offering that purports to be affiliated with EB-5. USCIS recommended the following steps:

  • Confirm that USCIS has designated the regional center. If you intend to invest through a regional center, check the list of current regional centers on USCIS’s website (http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/immigrant-investor-regional-centers). If the regional center is not on the list, exercise extreme caution. Even if it is on the list, understand that USCIS has not endorsed the regional center or any of the investments it offers.
  • Obtain copies of documents provided to USCIS. Regional centers must file an initial application (Form I-924) to obtain USCIS approval and designation, and must submit an information collection supplement (Form I-924A) at the end of every calendar year. Ask the regional center for copies of these forms and supporting documentation provided to USCIS.
  • Request investment information in writing. Ask for a copy of the investment offering memorandum or private placement memorandum from the issuer. Examine it carefully and research similar projects in evaluating the proposal. Follow up with any questions you may have. If you do not understand the information in the document or the issuer is unwilling or unable to answer your questions to your satisfaction, do not invest.
  • Ask if promoters are being paid. If there are supposedly unaffiliated consultants, lawyers, or agencies recommending or endorsing the investment, ask how much money or what type of benefits they expect to receive in connection with recommending the investment. Be skeptical of information from promoters that is inconsistent with the investment offering memorandum or private placement memorandum from the issuer.
  • Seek independent verification. Confirm whether claims made about the investment are true. For example, if the investment involves construction of commercial real estate, check county records to see if the issuer has obtained the proper permits and whether state and local property tax assessments correspond with the values the regional center attributes to the property. If other companies have purportedly signed onto the project, go directly to those companies for confirmation.
  • Examine structural risk. Understand that you may be investing in a new commercial enterprise that has no assets and has been established to loan funds to a company that will use the funds to develop projects. Carefully examine loan documents and offering statements to determine if the loan is secured by any collateral pledged to investors.
  • Consider the developer’s incentives. EB-5 regional center principals and developers often make capital investments in the projects they manage. Recognize that if principals and developers do not make an equity investment in the project, their financial incentives may not be linked to the success of the project.
  • Look for warning signs of fraud. Beware if you spot any of these hallmarks of fraud:

–         Promises of a visa or becoming a lawful permanent resident. Investing through EB-5 makes you eligible to apply for a conditional visa, but there is no guarantee that USCIS will grant you a conditional visa or subsequently remove the conditions on your lawful permanent residency. USCIS 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.

–         Guaranteed investment returns or no investment risk. Money invested through EB-5 must be at risk for the purpose of generating a return. If you are guaranteed investment returns or told you will get back a portion of the money you invested, be suspicious.

    • Overly consistent high investment returns. Investments tend to go up and down over time, particularly those that offer high returns. Be suspicious of an investment that claims to provide, or continues to generate, high rates of return regardless of overall market conditions.
  • Unregistered investments. Even though a regional center may be designated as a regional center by USCIS, most new commercial enterprise investment opportunities offered through regional centers are not registered with the SEC or any state regulator. When an offering is unregistered, the issuer may not provide investors with access to key information about the company’s management, products, services, and finances that registration requires. In such circumstances, investors should obtain additional information about the company to help ensure that the investment opportunity is bona fide.
  • Unlicensed sellers. Federal and state securities laws require investment professionals and their firms who offer and sell investments to be licensed or registered. Designation as a regional center does not satisfy this requirement. Many fraudulent investment schemes involve unlicensed individuals or unregistered firms.
  • Layers of companies run by the same individuals. Some EB-5 regional center investments are structured through layers of different companies that are managed by the same individuals. In such circumstances, confirm that conflicts of interest have been fully disclosed and are minimized.

USCIS noted that if an investment through EB-5 turns out to be in a fraudulent securities offering, the investor may lose both his or her money and a path to lawful permanent residence in the United States. USCIS said any EB-5 offering should be carefully vetted before investing money and hope of becoming a lawful permanent resident in the United States.

The USCIS alert is available at http://www.uscis.gov/news/alerts/investor-alert-investment-scams-exploit-immigrant-investor-program. That page also has links to the alert in Chinese, Korean, and Spanish.

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4.     USCIS Reminds Filipinos of Immigration Relief Measures Following Typhoon; US-CERT Warns About Scams

Following Typhoon Haiyan (Yolanda) in the Philippines, U.S. Citizenship and Immigration Services (USCIS) is reminding Filipino nationals that they may be eligible for certain immigration relief measures if requested.

USCIS said it understands that a natural disaster can affect an individual’s ability to establish or maintain lawful immigration status in the United States. Filipino nationals affected by Typhoon Haiyan may be eligible to benefit from the following immigration relief measures:

  • Change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
  • Extension of certain grants of parole made by USCIS;
  • Extension of certain grants of advance parole, and expedited processing of advance parole requests;
  • Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship (for more on this, see http://www.uscis.gov/forms/expedite-criteria);
  • Expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs);
  • Expedited adjudication of employment authorization applications, where appropriate; and
  • Assistance to LPRs stranded overseas without immigration or travel documents, such as permanent resident cards (green cards). USCIS said that it and the Department of State will coordinate on these matters when the LPR is stranded in a place that has no local USCIS office.

Meanwhile, US-CERT (United States Computer Emergency Readiness Team) issued a warning about disaster-related scams and phishing attacks. After a natural disaster, phishing emails and websites requesting donations for bogus charitable organizations often appear. US-CERT said users should be aware of potential email scams and phishing attacks regarding the Philippines typhoon disaster. Email scams may contain links or attachments that may direct users to phishing or malware-laden websites.

US-CERT encourages users to take various measures to protect themselves, including not clicking on unsolicited web links or attachments in email messages, and reviewing the Federal Trade Commission’s Charity Checklist and the Better Business Bureau’s National Charity Report Index.

The USCIS announcement is available at http://www.uscis.gov/news/alerts/uscis-reminds-filipino-nationals-impacted-typhoon-haiyan-available-immigration-relief-measures. Additional information on types of relief is available at http://www.uscis.gov/humanitarian/special-situations. Information from US-CERT on disaster-related scams is available at http://www.us-cert.gov/ncas/current-activity/2013/11/12/Philippines-Typhoon-Disaster-Email-Scams-Fake-Antivirus-and.

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5.    DHS Proposes SEVP Rule

The Department of Homeland Security (DHS) has proposed to amend its regulations under the Student and Exchange Visitor Program (SEVP) to improve management of international student programs and increase opportunities for study by spouses and children of nonimmigrant students. The proposed rule would grant school officials more flexibility in determining the number of designated school officials to nominate for the oversight of campuses. The rule also would provide greater incentives for international students to study in the United States by permitting accompanying spouses and children of academic and vocational nonimmigrant students in F-1 or M-1 nonimmigrant status to enroll in study at an SEVP-certified school so long as any study remains less than a full course of study. F-2 and M-2 spouses and children may not engage in a full course of study unless they apply for, and DHS approves, a change of nonimmigrant status to a status authorizing such study.

The proposed rule is available at https://www.federalregister.gov/articles/2013/11/21/2013-27898/adjustments-to-limitations-on-designated-school-official-assignment-and-study-by-f-2-and-m-2. Comments are due by January 21, 2014.

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6.    USDA Postpones Release of 2014 AEWR Wage Data

On October 17, 2013, the United States Department of Agriculture (USDA) announced a change in the schedule for the release of certain reports due to the lapse in appropriations resulting in the federal government shutdown. Among the affected reports is the Farm Labor Survey (FLS) report upon which the Department relies to establish the Adverse Effect Wage Rates in the H-2A program. The new release date for the FLS report is December 5, 2013.

Details are available at http://www.nass.usda.gov/Newsroom/Notices/10_17_2013.asp.

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7.   DOL Publishes Three Final Rules Eliminating Obsolete OFLC Regulations

The Department of Labor (DOL) has published three final rules eliminating Office of Foreign Labor Certification (OFLC) regulations that have been made obsolete by statutory or regulatory changes. The H-1A nursing visa (20 CFR 655 subparts D and E) and the F-1 student off-campus work permit (20 CFR 655 subparts J and K) regulations were based on statutes that sunset September 30, 1997, and September 30, 1996, respectively; the programs sunset at later dates and have now been completed. The logging provisions in 20 CFR subpart C were incorporated into the H-2A regulations published in the DOL’s final rule, Temporary Agricultural Employment of H-2A Aliens in the United States, at 75 Fed. Reg. 6884 (Feb. 12, 2010).

The OFLC announcement is available at http://www.foreignlaborcert.doleta.gov/. The H-1A rule is available at http://www.gpo.gov/fdsys/pkg/FR-2013-11-20/pdf/2013-27683.pdf. The F-1 rule is available at http://www.gpo.gov/fdsys/pkg/FR-2013-11-20/pdf/2013-27685.pdf. The logging rule is available at http://www.gpo.gov/fdsys/pkg/FR-2013-11-20/pdf/2013-27693.pdf.

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8.   Infosys Settles Visa Fraud and Abuse Case for Record $34 Million

Infosys Limited, an Indian company involved in consulting, technology and outsourcing, has agreed to pay a record $34 million civil settlement based on allegations of systemic visa fraud and abuse of immigration processes, and also agreed to enhanced corporate compliance measures. The $34 million payment made by Infosys as a result of these allegations represents the largest payment ever levied in an immigration case, U.S. Immigration and Customs Enforcement (ICE) announced.

ICE noted that Infosys is located in 30 countries and in 17 U.S. cities, including a location in Plano, Texas. The Plano location is responsible for handling the immigration practices and procedures for U.S. operations of Infosys. Infosys brings foreign nationals into the United States to perform work and fulfill contracts with its customers under two visa classification programs relevant to this case: H-1B and B-1.

ICE said that, among other things, Infosys fraudulently used B-1 visa holders to perform jobs involving skilled labor that were instead required to be performed by U.S. citizens or legitimate H-1B visa holders. ICE accused Infosys of directing B-1 visa holders to deceive U.S. consular officials, including a “do’s and don’ts” memorandum that instructed B-1 foreign nationals not to mention activities that “sound like work” or anything about contract rates. ICE also noted that Infosys failed to maintain I-9 records for many of its foreign nationals in the United States in 2010 and 2011, including failing to update and re-verify the employment authorization status of a large number of its foreign employees.

In addition to the $34 million payment, the settlement requires Infosys to conduct additional auditing for I-9 forms and meet a reporting requirement for B-1 usage, among other things.

David M . Marwell, special agent in charge of Homeland Security Investigations in Dallas, said: “This settlement against Infosys is the largest immigration fine on record. The investigation indicated that Infosys manipulated the visa process and circumvented the requirements, limitations, and governmental oversight of the visa programs. The investigation also showed that more than 80 percent of Infosys’s I-9 forms for 2010 and 2011 contained substantive violations. Ultimately, these actions by Infosys cost American jobs and simultaneously financially hurt companies that sought to follow the laws of this nation. Companies that misuse the visa process can expect to be scrutinized and held accountable.”

The settlement agreement is available at http://www.ice.gov/doclib/news/releases/2013/131030plano.pdf.

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9.      Office of Foreign Labor Certification Deals With Backlogs After Shutdown

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has experienced backlogs as a result of the cessation of its electronic systems due to the recent federal government shutdown. OFLC noted that this further resulted in a backlog of documents submitted to OFLC during that period by mail, hand-delivery, or email. As a result, OFLC implemented the following temporary changes:

  1. Submissions mailed, couriered, or emailed to OFLC and received between October 1 and October 18:

Submissions are applications that the National Processing Centers (Chicago, Atlanta, or Prevailing Wage Center) could not receive electronically through the iCERT system during the shutdown, and were mailed, delivered by private courier (Federal Express, etc.) or emailed to OFLC. These include Applications for Permanent Employment Certification (PERM, ETA 9089), Applications for Temporary Employment Certification (H-2B, H-2A ETA 9142), and Applications for Prevailing Wage Determinations (ETA 9141).

Because of the backlog in submissions that were mailed, delivered or emailed to OFLC for shutdown-related reasons or otherwise, all submissions received by OFLC between October 1 and October 18 were considered received on October 18. For example, a PERM application mailed to the Atlanta National Processing Center on October 5 was given a receipt date of October 18, 2013. If an October 18 receipt date on an application would have otherwise rendered out-of-date the recruitment or prevailing wage determination used for the application, the application was deemed to have been timely filed for the purpose of the recruitment or the prevailing wage determination.

  1. PERM and H-2B submissions with time-sensitive recruitment or prevailing wage determinations NOT mailed or delivered to OFLC during the shutdown:

Employers that decided not to mail or deliver PERM or H-2B submissions to OFLC because of the shutdown may now have recruitment or prevailing wage determinations that are out-of-date because of the shutdown-related delay. These employers were asked to mail or file electronically in PERM or iCERT (see note below about iCERT filing) submissions for receipt by November 14, 2013. This accommodation applied only to PERM and H-2B applications that had timely recruitment or prevailing wage determinations during the shutdown period and were later unsuitable for filing due to expired recruitment or prevailing wage determinations. Employers with time-sensitive recruitment or prevailing wage determinations who delayed their filings until after October 18, 2013, were deemed to have been timely filed for the purpose of the recruitment or the prevailing wage determination. For mailed submissions, employers were asked to include a pink sheet of paper as a cover page for the submission and label that cover sheet as a “shutdown pre-empted submission” so that it would be properly handled in OFLC mailrooms.

Note for PERM and H-2B iCERT filers: As with PERM and H-2B submissions with out-of-date recruitment or prevailing wage determinations that are mailed, no application with expired recruitment or expired prevailing wage determinations was accepted after November 14, 2013.

  1. Employer responses to OFLC directives that were due between October 1 and October 18, 2013, but were NOT transmitted to OFLC:

In the H-2A, H-2B and PERM programs, some employers may have been directed by OFLC to respond by a deadline that occurred from October 1, 2013, to October 18, 2013. Responses that were due to the OFLC during this period but not transmitted had their due dates extended to November 14, 2013. The deadline extension applied to the following documents in the following programs:

For Prevailing Wage Determinations:

    • Responses to Requests For Information

In H-2A and H-2B:

    • Responses to Notices of Deficiencies or Requests for Further Information
    • Audit Responses
    • Responses to Notices of Intent to Debar

In PERM:

    • Responses to information requests related to employer sponsorship
    • Audit/AAIR responses
    • Responses to Requests For Information
    • Responses to requests for review of advertisements in supervised recruitment
    • Responses to supervised recruitment (Recruitment Instructions Letters)
    • Responses to Notices of Intent to Revoke or to Debar
  1. Employer responses to OFLC directives that were due between October 1 and October 18, 2013, and were transmitted to OFLC during that period:

Responses to OFLC directives in the H-2A, H-2B and PERM programs (those noted in no. 3 above) that were due between October 1 and October 18, 2013, and were transmitted via mail, hand-delivery or email during that time were considered received on October 18 and timely.

If an applicant transmitted an application or response by mail, hand-delivery, or email between October 1 and October 18, 2013, and the employer had not received notice that the transmission was undeliverable, the employer should not re-submit it.

Employers were reminded that if they viewed a PERM application as erroneously denied during that period based on out-of-date recruitment, they could submit the request for reconsideration to the attention of the government error queue.

None of the temporary procedures established in this notice applied to appeals to the BALCA. Employers were encouraged to contact the BALCA for information related to deadlines applicable to appeals.

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

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10.     Visa Office Forecasts Changes in Some Employment Cut-Off Dates

The Department of State’s Visa Office has projected changes in some employment cut-off dates. The December 2013 Visa Bulletin notes that the India employment second and third preference category cut-off dates advanced very rapidly at the end of fiscal year 2013. Those movements were based on the availability of thousands of “otherwise unused” numbers that could be made available without regard to the preference per-country annual limits. This has resulted in a dramatic increase in applicant demand, the Visa Bulletin notes. Consequently, the Visa Office has retrogressed those cut-off dates for December “in an effort to hold number use within the numerical limits.”

In the coming months, the Visa Office expects the employment first preference category to remain Current, and the employment second preference worldwide category to remain Current. The employment second preference category for China is expected to move forward three to five weeks. No forward movement is expected in the India second preference category.

The worldwide employment third preference category cut-off date has advanced extremely rapidly during the past seven months “to generate new demand,” the Visa Bulletin states. As the rate of applicants whose cases are finalized increases, it could have a significant effect on the cut-off date. Rapid forward movement of this cut-off date “should not be expected to continue beyond February,” the Visa Bulletin notes.

China’s and Mexico’s employment third preference cut-off dates are expected to remain at the worldwide date. India should see no forward movement and the Philippines is expected to move forward three to six weeks.

The employment fourth and fifth preference cut-off dates are expected to remain Current. The Visa Office noted that these projections are “what is likely to happen during each of the next few months based on current applicant demand patterns.” However, the Visa Office cautioned that these trends are not guaranteed and corrective action could be required at some point to maintain number use within the applicable annual limits. Unless indicated, the Visa Office said that those categories with a Current projection in the December Visa Bulletin “will remain so for the foreseeable future.”

The Visa Bulletin for December 2013 is available at http://www.travel.state.gov/visa/bulletin/bulletin_6211.html.

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11.      OCAHO Substantially Reduces Penalties for Two Small Businesses; Fact Sheet Updated

In U.S. v. Red Bowl of Cary, LLC, the Executive Office for Immigration Review’s (EOIR) Office of the Chief Administrative Hearing Officer (OCAHO) reduced fines for Red Bowl of Cary, doing business as Red Bowl Asian Bistro in North Carolina, for Form I-9 violations. OCAHO also reduced fines for a small family business in a similar case, U.S. v. Kobe Sapporo Japanese, Inc. EOIR also recently updated its fact sheet on OCAHO.

Red Bowl case. U.S. Immigration and Customs Enforcement (ICE) investigated Red Bowl, which had 23 active employees, in 2011. The restaurant manager advised ICE that its I-9 employment authorization forms were filled out after ICE issued its Notice of Inspection and that he and Red Bowl’s president were unaware of the requirement to use the form. ICE sought penalties totaling $21,505. Red Bowl argued that the penalty was both inappropriate and excessive.

OCAHO noted that the minum penalty for paperwork violations is $110 and the maximum is $1,100. In assessing an appropriate penalty, OCAHO noted, the following factors are considered: (1) the size of the employer’s business, (2) the good faith of the employer, (3) the seriousness of the violations, (4) whether the individual was an unauthorized alien, and (5) the history of previous violations. OCAHO observed that the law neither requires that equal weight be given to each factor nor rules out consideration of additional factors.

Potential penalties for the 23 violations in this case ranged from $23,509 to $25,300, OCAHO noted. Instead of focusing on the completion of its I-9 forms, Red Bowl noted that it exercised reasonable care to refrain from hiring unauthorized aliens and had never done so. Red Bowl said that its conduct may have been negligent but that its violations were less serious than, for example, an intentional falsification of forms or a refusal to fill them out. Red Bowl argued that the fines were unduly punitive in light of a statutory analysis showing no aggravating factors. The restaurant noted that even in a worst-case scenario, where a large company willfully disregarded its obligations, falsified I-9 forms, employed unauthorized workers, and had a history of previous violations, the penalty would still be only $3,794.45 more than what the government sought here. Red Bowl also noted that the proposed penalty represented 16% of its income for the tax year 2011 and would create undue hardship. Red Bowl argued that a more appropriate penalty would be $110 for each violation, or a total of $2,530. The restaurant also requested a schedule permitting payment over a six-month period.

OCAHO noted that Red Bowl had not employed any unauthorized aliens and had no history of previous violations, so the only negative factor was the seriousness of the violations. OCAHO said that an employer’s failure to prepare a timely I-9 form for an employee is a serious violation because it may permit an unauthorized individual to maintain unlawful employment. OCAHO acknowledged that 16% of the restaurant’s income appeared excessive in light of the record, noting that a penalty “needs to be sufficiently meaningful to acocmplish the purpose of deterring future violations” but “should not be unduly punitive in light of the respondent’s resources.” OCAHO said that penalties very close to the maximum permissible “should be reserved for the most egregious violations,” noting a “general public policy of leniency toward small entities.” OCAHO adjusted the penalty amount to “an amount closer to the midrange,” for a total penalty of $10,350. OCAHO said that a payment schedule could be established “to minimize the impact of the penalty on the operations of the restaurant.”

Kobe Sapporo Japanese case. In a similar case, U.S. v. Kobe Sapporo Japanese, Inc., ICE alleged that the company, a small family-owned restaurant in North Carolina, failed to ensure that its 26 workers properly completed various sections of the I-9 form. The complaint sought penalties totaling $29,452.50. OCAHO noted that an employer’s financial health, the economy, the employer’s ability to pay the fine, and the potential effect of the fine on the company are all appropriate additional factors to be considered. Penalties are not intended to cause employees to lose their jobs or to force employers out of business, but rather to enhance the probability of future compliance, OCAHO said, reducing the total amount of the penalties to $15,400.

Both cases were decided on October 18, 2013. The Red Bowl decision is available at http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume10/1206.pdf. The Kobe Sapporo Japanese decision is available at http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume10/1204.pdf.

Fact sheet updated. EOIR also updated its OCAHO fact sheet on October 1, 2013. The fact sheet explains what OCAHO does; the types of cases it hears; and how it receives cases related to employer sanctions, document fraud, and unfair immigration-related employment practices, including the typical steps in how a case proceeds. The fact sheet notes that OCAHO decisions are available at http://www.justice.gov/eoir/OcahoMain/ocahosibpage.htm. The fact sheet is available at http://www.justice.gov/eoir/press/2012/OCAHOFactSheet05292012.pdf.

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12.   State Dept. Updates Visa Reciprocity Tables

The Department of State has updated the visa reciprocity tables. Among other things, the Department recently updated the document section for Somalia; updated police records information for Croatia; and added same-sex marriage certificate information for South Africa and Spain.

The tables are available at http://travel.state.gov/visa/fees/fees_3272.html.

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13.   USCIS Extends TPS for Somalis

Acting Secretary of Homeland Security Rand Beers has extended temporary protected status (TPS) for eligible nationals of Somalia for an additional 18 months, effective March 18, 2014, through September 17, 2015.

Current Somali beneficiaries seeking to extend their TPS status must re-register during a 60-day period that began on November 1, 2013, and runs through December 31, 2013. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible. USCIS did not accept applications it received before November 1, 2013.

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Somali TPS beneficiaries who re-register during the re-registration period and request work authorization will receive a new EAD that expires on September 17, 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 fee, or a fee-waiver request, if they are age 14 or older. All TPS re-registrants must also submit Form I-765, Application for Employment Authorization, but no I-765 application fee is required if the re-registrant does not want an EAD. TPS re-registrants requesting an EAD must submit the I-765 application fee, or a fee-waiver request.

Applicants may request that USCIS waive any or all fees based on 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 the rejection of the TPS application, USCIS noted.

Additional information on TPS for Somalia is available online at http://www.uscis.gov/tps. Further details on this extension of Somalia for TPS, including application requirements and procedures, are available in the Federal Register notice at http://www.gpo.gov/fdsys/pkg/FR-2013-11-01/pdf/2013-25969.pdf. A correction to the Federal Register notice amending the dates of the re-registration period was published at https://www.federalregister.gov/articles/2013/11/06/C1-2013-25969/extension-of-the-designation-of-somalia-for-temporary-protected-status.

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14.   ABIL Global: Turkey

The new Residence Permit Law will overhaul immigration in Turkey.

On April 11, 2013, Law No. 6458, Law on Foreigners and International Protection, was published in the official gazette of Turkey and is set to go into effect in one year. This new law will make vast changes to residence permit eligibility and procedure, and will create a new governmental office.

The changes span a wide variety of issues, including the requirements for residing and working in Turkey, protection of victims of human trafficking, changes in business visitor rules, procedures and categories of residence status, grounds for deportation, and processing of refugees. Changes include the extension of the 90-out-of-180-day rule for tourists to business visitors. Also, sticker visas obtained at the border will only be valid for 15 days. The rule to apply for a residence permit within 30 days of entry will be extended to 90 days. The renewal of residence permits will be accepted for filing at a much earlier period of 60 days before expiration. Also, a new provision will allow the initial filing of residence permits at consular posts.

Significantly, new categories of resident permit eligibilities will be created, including for those who will open a business or buy real estate in Turkey. The law also requires the creation of a new Administration General Directorate of Migration under the Ministry of Interior, which is underway.

Residence Permits

Until April 11, 2014, residence permits are being handled by the local and regional Police Departments under the Interior Ministry. With the new law, this process will be moved to the new Directorate of Migration, as well as to consular posts for certain applications. The new Directorate will establish new offices under the governor’s and district governor’s offices around Turkey.

New categories of residence permits include short-term, long-term, family, student, humanitarian, and victims of human trafficking.

According to the new law, a foreigner must seek a residence permit in an appropriate category if he or she intends to remain in Turkey more than 90 days. This is an expansion of the previous 30-day rule. Short-Term Residence Permits will be valid up to one year. The new Long-Term Permit appears to have some similarities to a U.S. green card. This type of permit will require that the person has already resided legally and continuously in Turkey for at least eight years, shown that he or she has not required public assistance for the last three years, provided evidence of financial self-support (including health insurance), and not be a threat to public order or security.

Procedurally, the new law indicates that those applying for new residence permits must do so at a Turkish consular post in the applicant’s home country. For those who already have a current, valid residence permit, extensions must be filed with the new Directorate officials at the local governor’s office.

The new law stipulates that if a person is granted a work permit, he or she no longer must obtain a separate residence permit. This will be a relief to international assignees who have dealt with tremendous delays in residence permit issuance due to massive backlogs of applications at the local police departments in many municipal locations.

Deportation and Ban on Reentry

The law also creates new harsher procedures and penalties for deportation and a ban on the re-entry of foreigners who are out of status or not abiding by the terms of their stay. The ban may be up to five years in some circumstances such as overstaying, and up to 10 years if the person is deemed a “security threat.”

Protection of Refugees and Victims of Human Trafficking

The new law also better protects refugees and victims of human trafficking. It is a significant step for Turkey’s protection of human rights, particularly considering the refugee flow into Turkey from neighboring countries such as Syria, Iraq, and Iran. Under the new law, Turkey will not be able to return foreigners to countries where they will be subject to torture or inhumane treatment.

The new law indicates Turkey’s awareness of the need to overhaul its management of foreigners. As Turkey’s economy has grown, it is now a leading location in the region for expatriates of many international companies, as well as a prime location for new investment. As a result, the number of foreigners needing work permits has grown exponentially. Also, based on its location bordering several countries in turmoil, the processing of refugees has become a growing problem. Further detailed guidance is sorely needed well in advance of the April 11, 2014, implementation deadline.

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15.  Firm In The News

Cyrus Mehta was the Discussion Leader in an AILA webinar entitled An Ethical Look At Accepting Fees Before Immigration Reform on November 15, 2013.

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November 2013 Immigration Update

Headlines:

1. Federal Government Reopens; OFLC, USCIS Announce Temporary Accommodation for I-129 H-2A Petitions The Department of Labor’s Office of Foreign Labor Certification and USCIS announced temporary accommodation for I-129 H-2A petitions.

2. EOIR Updates Guidance on Immigration Court Filings After Government Shutdown, Changes Zip Code – EOIR issued details about immigration court filings in the wake of the government shutdown, and announced a change in zip code.

3. E-Verify Issues Guidance for Employers on Technical Glitch Related to Documentation – On October 22, 2013, E-Verify experienced some technical issues, and has issued related guidance.

4. USCIS Clarifies Eligibility Requirements for 17-Month Extension of Post-Completion OPT for F-1 STEM Students – F-1 students engaging in post-completion OPT are eligible for a 17-month STEM extension even if they have not yet completed the thesis requirement or equivalent for their STEM degree.

5. Congress Extends Special Immigrant Visa Program for Iraqis – Visas may be issued to principal applicants until December 31, 2013.

6. FY 2014 Limit Set for CNMI-Only Transitional Workers – DHS has announced a limit of 14,000 nonimmigrants for FY 2014 for CNMI-Only Transitional Workers.

7. SEVP Sought Feedback on Draft Guidance re Vacations, Temporary Absences, and Timely Filings – The program is accepting feedback on draft guidance regarding vacations, temporary absences, and timely filings.

8. ABIL Global: Schengen Area – A new European regulation clarifies the calculation of the authorized length of short-term stays in the European Union (new “90-day rule,”) and amends other rules.

9. Firm In The News

Details

1. Federal Government Reopens; OFLC, USCIS Announce Temporary Accommodation for I-129 H-2A Petitions

The Department of Labor’s Office of Foreign Labor Certification issued the following announcement on October 23, 2013:

With the reopening of the federal government, USCIS has been informed that the Department of Labor’s (DOL) Office of Foreign Labor Certification is once again accepting and processing applications, including Temporary Labor Certifications (TLCs).

On Oct. 21, 2013, DOL issued an announcement to H-2A stakeholders stating that once the TLC is certified, the Chicago National Processing Center will send an email to the employer and its authorized representative containing an Adobe PDF of the labor certification. The employer would need to print, sign and date the PDF version for submission to USCIS with the Form I-129, Petition for Nonimmigrant Worker.

USCIS usually requires that a petitioner submit the certified TLC on blue security paper with original signatures. Beginning October 23, 2013, USCIS in consultation with DOL has determined that USCIS will temporarily accept Form I-129 H-2A petitions that are filed with a copy of the certified TLC. During this temporary accommodation, the signatures on the TLC submitted to USCIS do not need to be original. This temporary accommodation is being implemented because of the unique time sensitivities associated with agricultural work.

H-2A petitioners must submit the original Form I-129 petition, all required fees, and supporting documentation with a copy of the signed, certified TLC. DOL has indicated that this accommodation should last no longer than 30 days. USCIS will provide further guidance on when this accommodation will expire. At that time, H-2A petitioners will once again be required to submit the signed original of the certified TLC with their H-2A petition.

The notice is available at http://www.foreignlaborcert.doleta.gov/. USCIS’ related notice is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176
543f6d1a/?vgnextoid=47894061ca6e1410VgnVCM100000082ca60aRCR
D&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
.

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2. EOIR Updates Guidance on Immigration Court Filings After Government Shutdown, Changes Zip Code

The Department of Justice’s Executive Office for Immigration Review (EOIR) issued updated guidance on October 25, 2013, about immigration court filings following the U.S. government shutdown. The guidance notes that during the government shutdown (October 1-16, 2013), EOIR was operating in a limited capacity. Immigration courts nationwide continued to adjudicate “detained” cases but all other functions were suspended.

The guidance notes that any filing with the immigration court related to a “non-detained” case that was due October 1-16, 2013, will be considered timely filed if it is received by the appropriate court by November 8, 2013. No request for, or documentation supporting, an extension is required if the appropriate court receives the originally due filing before the close of business on November 8. EOIR said it will issue new notices of hearing for cases affected by the lapse in government funding. Cases will be scheduled for available dates on the docket, but will not be scheduled in a way Тthat would cause disruption to previously scheduled cases.У

EOIR also noted that the Board of Immigration Appeals (BIA) processed only filings related to detained cases during the lapse in government funding. The BIA accepted all filings during that period. Also, EOIR transitioned to zip code 20530 on October 1, 2013. Due to the convergence of those two events, the BIA said it will consider timely filed any filing that meets both of these criteria:

(1) the filing was due during the month of October 2013; and

(2) the BIA received the filing on or before November 1, 2013.

No request for, or documentation supporting, an extension is required for filings that arrive at the BIA by November 1, 2013. Filings that arrive after November 1, 2013, will be subject to normal filing deadlines. If timeliness is an issue for any filings that the BIA receives after November 1, 2013, the BIA recommends consulting the BIA Practice Manual, available online at http://go.usa.gov/Wx7j.

EOIR said that the Office of the Chief Administrative Hearing Officer (OCAHO) maintained its ability to issue subpoenas and accept complaints required to be filed by statutory deadlines. OCAHO granted all requests for extensions of time or temporary stays of proceedings made during that period, and accepted all filings received. Future requests for extensions or stays will be decided on a case-by-case basis, EOIR said.

The notice is available at http://www.aila.org/content/default.aspx?docid=46240. The EOIRХs September zip code change was announced at http://www.justice.gov/eoir/press/2013/EOIRZipCodeChange09112013.html.

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3. E-Verify Issues Guidance for Employers on Technical Glitch Related to Documentation

U.S. Citizenship and Immigration Services disseminated an alert on October 24, 2013, noting that on October 22, 2013, E-Verify experienced some technical issues that now have been resolved. As a result, employees who provided U.S. Passports or Passport Cards were erroneously receiving Tentative Nonconfirmations. USCIS’s instruction only applies to cases created on October 22, 2013, for employees who provided a U.S. Passport or Passport Card. It does not apply to other employees who provided other acceptable document(s) from the List of Acceptable Documents. USCIS sent the following guidance to E-Verify users:

If you created a case for an employee who provided a U.S. Passport or Passport Card and received a Tentative Nonconfirmation, close the case as “Invalid because the data entered is incorrect.” You should then create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9.

Additionally, if you were unable to create a case, you should now create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9. If you created the new case on the same day as the technical issue (October 22, 2013), you must close that case as “Invalid because the data entered is incorrect” and create a new case.

If you are prompted to select or enter the reason why the case was not submitted within 3 business days of hire please select “Technical Problems” from the drop-down menu.

You must NOT ask the employee to provide a different document if the document(s) they provided, including the U.S. Passport or Passport Card, appear to be genuine and relate to the individual presenting it. You must NOT request that employees produce more documents than are required by Form I-9 to establish your employee’s identity and employment authorization. Requiring that your employee present new or different documentation could be considered document abuse and is prohibited under the Immigration and Nationality Act.

We apologize for any inconvenience this may have caused. If you have any additional questions, please feel free to contact E-Verify at 888-464-4218. Customer service representatives are available Monday – Friday 8 AM – 5PM local time. You may also e-mail E-Verify at E-Verify@dhs.gov.

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4. USCIS Clarifies Eligibility Requirements for 17-Month Extension of Post-Completion OPT for F-1 STEM Students

On October 21, 2013, U.S. Citizenship and Immigration Services (USCIS) clarified eligibility requirements for a 17-month extension of post-completion optional practical training (OPT) for F-1 students enrolled in STEM (science, technology, engineering, and mathematics) programs.

USCIS said the issue is whether F-1 students engaging in post-completion OPT under 8 CFR ¤ 214.2(f)(10)(ii)(A) are eligible for the 17-month STEM extension under 8 CFR ¤ 214.2(f)(10)(ii)(C) if they have not yet completed their thesis requirement or equivalent for their STEM degree when applying for the STEM extension. USCIS said that F-1 students engaging in post-completion OPT are eligible for a 17-month STEM extension even if they have not yet completed the thesis requirement or equivalent for their STEM degree.

USCIS explained that to be eligible for post-completion OPT under 8 CFR ¤ 214.2(f)(10)(ii)(A), F-1 students must have completed their course of study, or, for students in a bachelor’s, master’s, or doctoral degree program, the students must have completed all course requirements for their degree, excludingany applicable thesis requirement or equivalent.

USCIS said that with a narrow reading of 8 CFR ¤ 214.2(f)(10)(ii)(C)(1) and (2), one might conclude that F-1 students who have been granted post-completion OPT under 8 CFR ¤ 214.2(f)(10)(ii)(A) must have completed all course requirements for their STEM degrees, including any applicable thesis requirement or equivalent, to be eligible for the 17-month STEM extension (i.e., only after “earninga STEM degree”). However, 8 CFR ¤ 214.2(f)(10)(ii)(C)(1) and (2) cannot be read in isolation, USCIS said; they must be read in conjunction with 8 CFR ¤ 214.2(f)(10)(ii)(A)(3), which states that students need not necessarily have completed their thesis requirement or equivalent to be eligible for post-completion OPT. Because the 17-month STEM extension is merely an extension of a previously granted period of post-completion OPT, USCIS concluded that students who are applying for the STEM extension need not necessarily have completed their STEM degree thesis requirement or equivalent to be eligible for the extension. Such a reading “is made even more compelling from a policy perspective, given the nation’s interest in attracting and retaining the world’s best and brightest individuals,” USCIS said. Moreover, USCIS noted, such a reading is consistent with the position taken by the Student and Exchange Visitor Program (SEVP) in policy guidance on this specific issue.

Additional details are available in USCIS’s guidance, available at
http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Interim
%20Guidance%20for%20Comment/OPT-STEM-Extension.pdf
.

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5. Congress Extends Special Immigrant Visa Program for Iraqis

Congress has extended, and President Barack Obama has signed, legislation (H.R. 3233) extending the Special Immigrant Visa (SIV) program for Iraqi nationals who worked for or on behalf of the U.S. government. The President signed the legislation on October 4, 2013.

The law extends the authority of the Department of State (DOS) to issue SIVs to Iraqi nationals under the National Defense Authorization Act of 2008 until December 31, 2013. Visas may be issued to principal applicants under this program until that date. Approved visas are not affected by the end of the program.

The SIV program that has been extended covers Iraqi nationals who, between March 20, 2003, and September 30, 2013, were employed by or on behalf of the U.S. government in Iraq for a period of at least one year. The program had expired with respect to principal applicants on September 30, 2013, but has now been extended. The extension permits USCIS to approve petitions or applications for visas or adjustment of status to lawful permanent residence in any eligible Iraqi SIV case that were pending with USCIS or with DOS when the program expired on September 30, 2013. USCIS may also approve an additional 2,000 cases as long as the initial applications to the DOS Chief of Mission in Iraq are made by December 31, 2013.

Also, DOS’s authority to issue Special Immigrant Visas to Afghan nationals expired on September 30, 2014. DOS said it welcomed any actions by Congress to extend the Afghan SIV program and to further extend the Iraqi SIV program. “Across the U.S. government, every effort is being made to ensure qualified applicants are processed in a timely fashion before the Iraqi and Afghan programs’ scheduled end dates,” DOS said. It is unclear how the government shutdown may have affected processing.

The authority to grant derivative SIV status to spouses and children of principal Iraqi SIVs did not sunset on September 30, 2013, and is not numerically capped.

USCIS’s announcement is available at http://content.govdelivery.com/bulletins/gd/USDHSCIS-8f1668. The Department of State’s announcement is available at http://travel.state.gov/visa/immigrants/types/types_1326.html.

Information on a separate extension for translators/interpreters in Iraq or Afghanistan who worked with the U.S. Armed Forces or under Chief of Mission authority is available at http://travel.state.gov/visa/immigrants/info/info_3738.html.

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6. FY 2014 Limit Set for CNMI-Only Transitional Workers

The Department of Homeland Security (DHS) announced a limit of 14,000 nonimmigrants for fiscal year (FY) 2014 for the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) program.

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. The CW program is in effect until December 31, 2014. Before that date, the CNMI’s nonresident worker program is being transitioned to the U.S. federal immigration system. This transition period was established by the Consolidated Natural Resources Act of 2008 (CNRA), which extended, for the first time, most provisions of U.S. immigration law to the CNMI.

The annual CNRA-required reduction in CW-1 workers will eliminate the CW nonimmigrant classification by the end of the transition period. DHS set the CW-1 limit for FY 2014 at 14,000 to meet the CNMI’s existing labor market needs and provide opportunity for potential growth, while meeting a CNRA requirement to reduce the numerical limit each year. The CW program will end on December 31, 2014, unless it is extended by the DOL.

U.S. Citizenship and Immigration Services said this announcement does not affect the status of current CW-1 workers unless their employers file for extensions of their current authorized periods of stay or they seek to change CW-1 employers. Approved petitions that request a work-start date in FY 2014 (between October 1, 2013, and September 30, 2014) will count toward the 14,000 limit. The numerical limit applies only to CW-1 principals, USCIS noted. It does not directly affect persons currently holding CW-2 status, which is for spouses and minor children of CW-1 nonimmigrants. However, CW-2 nonimmigrants may be indirectly affected because their status depends upon that of the principal CW-1.

A numerical limit of 15,000 CW-1s was set for FY 2013. As of August 13, 2013, employers in the CNMI filed petitions for at least 7,323 transitional workers.

USCIS’s announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614
176543f6d1a/?vgnextoid=6a29b14e78551410VgnVCM100000082ca6
0aRCRD&vgnextchannel=a2dd6d26d17df110VgnVCM1000004718190aRCRD
. The DHS’s Federal Register notice is available at
https://www.federalregister.gov/articles/2013/09/25/2013-23289/
commonwealth-of-the-northern-mariana-islands-cnmi-only-transitional
-worker-numerical-limitation-for
.

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7. SEVP Sought Feedback on Draft Guidance re Vacations, Temporary Absences, and Timely Filings

The Student and Exchange Visitor Program (SEVP) periodically requests feedback from the public on draft guidance affecting F and M students. The program accepted until October 23, 2013, feedback on guidance regarding vacations, temporary absences, and timely filings:

Links to the draft guidance listed above are available in SEVP’s notice at http://studyinthestates.dhs.gov/draft-guidance. The e-mail address for submitting feedback is SEVPFeedback@ice.dhs.gov (include the title of the guidance in the subject line).

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8. ABIL Global: Schengen Area

A new European regulation clarifies the calculation of the authorized length of short-term stays in the European Union (new “90-day rule,”) and amends other rules.

Short-term stay is defined by European Union (EU) legislation as residence up to “three months during the six months following the date of first entry.” This wording has led to interpretation problems.

A recent European Regulation of June 26, 2013 (hereafter “Regulation 610/2013”) amended the Schengen Borders Code and the Schengen Agreement by replacing the reference to “three months during the six months following the date of first entry” by “90 days in any 180-day period.” The aim of the new wording is to install “clear, simple and harmonized rules” with regard to the “calculation of the authorized length of short-term stays in the [EU].”

One of the amended articles is article 5, para. 1, introductory part, of the Schengen Borders Code. In this same article a new para. 1a is inserted:

1. For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following:

1a. For the purposes of implementing paragraph 1, the date of entry shall be considered as the first day of stay on the territory of the Member States and the date of exit shall be considered as the last day of stay on the territory of the Member States. Periods of stay authorized under a residence permit or a long-stay visa shall not be taken into account in the calculation of the duration of stay on the territory of the Member States.” (Emphasis added.)

All amended articles with regard to the new 90-day rule took effect on October 18, 2013.

Regulation 610/2013 has also amended other rules, already effective as of July 19, 2013. One of these rules is article 5, para. 1(a) of the Schengen Borders Code, pursuant to which the short-term stay entry conditions relating to a valid travel document have been modified. Under the new rules, the required valid travel document not only must entitle the holder to cross the border, but also must (i) be valid “at least three months after the intended date of departure from the territory of the Member States” (this requirement may be waived in “a justified case of emergency”) and (ii) “have been issued within the previous 10 years.”

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9. Firm In The News

Cyrus Mehta spoke on “U.S. Immigration and Tax Rules For Global Professionals” at the North American South Asian Bar Association’s (NASABA) Tax & Immigration Webinar, October 24, 2013. For details, see http://www.nasaba.com/events/event_details.asp?id=356514.

Mr. Mehta also spoke on “Immigration Reform and Ethics” at the Statewide Meeting of the New York State Association of Disciplinary Attorneys, New York Country Lawyers’ Association, in New York City on October 25, 2013.

Cora-Ann V. Pestaina spoke on PERMs at the monthly meeting of the AILA NY Chapter in New York, NY on October 7, 2008.

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October 2013 Immigration Update

Headlines:

1.         Effects of Government Shutdown on Immigration Services Summarized E-Verify is unavailable, among other effects of the federal government shutdown.

2.         Diversity Visa Registration for 2015 Program Begins; Nigeria No Longer Eligible – Online registration for the DV-2015 Program began on Tuesday, October 1, 2013, at 12 noon EDT (GMT-4), and will conclude on Saturday, November 2, 2013, at 12 noon EDT (GMT-4).

3.         Immigration Reform Languishes in Congress Amid Distractions – Immigration reform legislation lags in the House of Representatives; progress into 2014 is uncertain at best.

4.         U.S. Consulate in Chennai Provides Helpful Tips to ABIL – The Chennai consulate in India processes 25% of the world’s H-1B visa applications and 30% of the world’s L-1 visa applications.

5.         State Dept. Sends Guidance to Posts on New Electronic Immigrant Visa Application -The Department of State recently sent a cable to all diplomatic and consular posts providing guidance and describing the timeline for deployment of the new electronic DS-260 (Immigrant Visa Application) and DS-261 (Choice of Address and Agent).

6.         USCIS Implements Identity Verification at Field Offices – The new tool allows applicants to submit biometric data (fingerprints and photographs) when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit. USCIS still requires applicants and petitioners requesting immigration or naturalization benefits to visit an Application Support Center to provide biometric data.

7.         DACA Reaches One-Year Mark – 588,725 applications were received as of August. Of those, 567,563 were accepted and 21,162 were rejected.

8.         Thousands Naturalized at Constitution Day and Citizenship Day Ceremonies – More than 18,000 new citizens were naturalized during more than 180 ceremonies between September 16 and September 23.

9.         Senate Reauthorizes Special Immigrant Visa Program for Iraqis – On September 30, 2013, the Senate reauthorized the Special Immigrant Visa program for Iraqi nationals who worked for or on behalf of the United States government in Iraq. It now goes to the House of Representatives.

10.        ABIL Global: Canada – Significant new changes are effective for the QuЋbec Skilled Worker Program and the Labour Market Opinion application process.

11.        Firm In The News

Details

1.         Effects of Government Shutdown on Immigration Services Summarized

The shutdown of the federal government will affect certain components of the U.S. immigration system. For example, the E-Verify system is unavailable. Regulatory developments could also be delayed. The following is an overview of how the shutdown will affect various processes, based on agency statements and news reports.

U.S. Citizenship and Immigration Services: Processing of petitions and applications at USCIS is expected to continue uninterrupted because the agency is funded by user fees and does not depend on federal appropriations.

While the shutdown continues, however, E-Verify users will not be able to access their accounts. As a result, they will be unable to:

  • Enroll any company in E-Verify
  • Verify employment eligibility
  • View or take action on any case
  • Add, delete, or edit any User ID
  • Reset passwords
  • Edit company information
  • Terminate an account
  • Run reports
  • View “Essential Resources” (see http://www.dhs.gov/e-verify)

In addition, E-Verify Customer Support and related services are closed. As a result:

  • Employees will be unable to resolve Tentative Nonconfirmations (TNCs).
  • Telephone and e-mail support will be unavailable. Users may send e-mails, but USCIS says it cannot respond until the agency reopens.
  • E-Verify webinars and training sessions are cancelled.
  • E-Verify Self-Check is not available.

USCIS said it understands that E-Verify’s unavailability may have a significant impact on company operations. To minimize the burden on both employers and employees, USCIS has implemented the following policies:

  • The “three-day rule” for E-Verify cases is suspended for cases affected by the shutdown. USCIS said it would provide additional guidance once it reopens. USCIS noted that this does not affect the Form I-9 requirementСemployers must still complete the I-9 no later than the third business day after an employee starts work for pay.
  • The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count toward the eight federal government workdays the employee has to go to the Social Security Administration or contact the Department of Homeland Security. USCIS said it will provide additional time once it reopens.
  • Federal contractors complying with the federal contractor rule should contact their contracting officers to ask about extending deadlines.
  • Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to the federal government shutdown. USCIS says employers should consult the E-Verify User Manual for more information on interim case statuses.

Also, USCIS’s Ombudsman’s Office is closed as of October 1, 2013. Additionally, case inquiries submitted online or through emailed/faxed DHS 7001 forms will remain pending until the Ombudsman resumes operations.

Systematic Alien Verification for Eligibility (SAVE) will be operational during the shutdown.

Department of Labor: The Office of Foreign Labor Certifications, which has oversight of most immigration-related processes, is effectively closed. Consequently, the Department of Labor (DOL) will not accept or process any applications or materials relating to Labor Condition Applications (LCAs), Prevailing Wage Determinations, or Applications for Permanent Employment Certification (i.e., the PERM system).

The operational status of DOL affects the ability to file petitions with USCIS that require a certified LCA (such as requests for H-1B, H-1B1, and E-3 classification). Historically, in instances where it was not possible to obtain a certified LCA, USCIS temporarily created an exemption to the LCA requirement. To date, however, no such exemption has been announced. Similarly, the DOL’s status may affect the timing requirements of PERM applications. Future guidance on these issues is expected.

The DOL notes that “[i]n the event of a government shutdown, processing times in the foreign labor certification programs will be extended, and may cause delays in decisions in applications in those programs.” OFLC’s web site, including the iCERT Visa Portal System, is unable to process any requests or allow authorized users to access their online accounts.

Department of State: The issuance of visas, as well as related consular operations, will remain operational for the present time. However, the Department of State has indicated that if current funds are exhausted, consular services may be reduced or halted. Applicants for visas are advised to monitor the website of the consulate at which they intend to apply for the latest information.

Reports indicate that passport and visa services will continue for the present time, but there is uncertainty in the event the shutdown lasts longer. Consular operations are not currently affected but will be decided on a case-by-case basis in the event of a lapse in appropriations.

U.S. Customs and Border Protection: The Border Patrol is not shutting down. Those entering the United States with a valid visa should not encounter any issues at airports or land border crossings, and the electronic I-94 retrieval system is operational. However, individuals who seek to apply for an immigration benefit at a port-of-entry or a pre-clearance facility (such as TN and L-1 applications for Canadian nationals) are advised to confirm the operational status of the location at which they intend to apply for the latest information.

Executive Office for Immigration Review: Immigration courts nationwide are continuing to adjudicate detained cases. Court functions that support the detained caseload will continue, but other functions are suspended. For specific information about a particular court, see http://www.justice.gov/eoir/ICstatus.htm.

The Board of Immigration Appeals (BIA) is processing emergency stay requests as well as cases where the alien is detained, including case appeals, motions, federal court remands, and bonds. The stay line is open for emergency stay calls only. All other telephone lines have been switched to closed status. The BIA Clerk’s Office staff is accepting all filings and will be open Monday through Friday, from 8:00 a.m. until 4:30 p.m.

During the government shutdown, the Office of the Chief Administrative Hearing Officer will maintain its ability to issue subpoenas and accept for filing any antidiscrimination complaints that must be filed to comply with statutory deadlines.

USCIS’s statement about the E-Verify shutdown is available at http://content.govdelivery.com/bulletins/gd/USDHSCIS-8d7ce1. A summary of DHS’s plans is available at http://m.whitehouse.gov/sites/default/files/omb/contingencyplans/2013/
dhs-lapse-plan-summary-09-27-13.pdf
. The DOL’s statement is available at http://www.dol.gov/opa/media/press/opa/shutdown_plan2013.pdf. Information on the DOL’s Employment and Training Administration activities is available at http://wdr.doleta.gov/directives/attach/TEN/TEN_8_13.pdf. The Department of State’s information on the shutdown is available at http://www.state.gov/m/rls/2013/214862.htm.

If you have any questions or concerns on how the government shutdown affects an employee’s immigration process or employment eligibility verification, please contact your Alliance of Business Immigration Lawyers attorney for further guidance.

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2.         Diversity Visa Registration for 2015 Program Begins; Nigeria No Longer Eligible

Online registration for the DV-2015 (Diversity Visa) Program began on Tuesday, October 1, 2013, at 12 noon EDT (GMT-4), and will conclude on Saturday, November 2, 2013, at 12 noon EDT (GMT-4). The Department of State advises, “Do not wait until the last week of the registration period to enter, as heavy demand may result in website delays.”

Nationals of the following countries are not eligible for DV-2015: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, 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.

“Diversity immigrants” are selected by random lottery from eligible nationals of countries with historically low rates of immigration to the United States. For fiscal year 2015, 50,000 diversity visas will be available. There is no cost to register for the DV Program.

Applicants who are selected in the lottery must meet eligibility requirements to qualify. Diversity visas are distributed among six geographic regions, and no single country may receive more than seven percent of the available diversity green cards in any one year.

Entries must be submitted online only once at http://www.dvlottery.state.gov. Incomplete or duplicate entries will be disqualified. Entrants will need to check the status of their entries online at the same website beginning in May 2014. The instructions for the DV-2015 Program, which includes eligibility requirements and frequently asked questions, are available at http://travel.state.gov/pdf/DV_2015_Instructions.pdf.

DV-2014 entrants may check the status of their entries through Entrant Status Check (http://travel.state.gov/visa/immigrants/types/types_1322.html#status) through June 30, 2014.

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3.         Immigration Reform Languishes in Congress Amid Distractions

With all the kerfuffle around Syria, the efforts to kill the health care law known as “Obamacare,” the partial government shutdown, and the debate over the looming possible refusal to raise the debt ceiling and economic crisis that could produce, immigration reform legislation lags in Congress. Progress has been stymied in the House of Representatives following statements from some House members that they would prefer a piecemeal approach and others saying they want comprehensive reform. Chances for progress in the near future seem dim.

Not everyone is pessimistic. Some technology insiders are still pushing and hoping for progress on the high-skilled worker front at least. Scott Corley, Compete America’s executive director, said, “We’re not going to accept the crisis excuse. There is always a crisis. Immigration is a crisis. Being in Congress you have to walk, chew gum, juggle knives and jump through hoops on fire all at once. That’s the job.” And Mark Zuckerberg of Facebook, a self-described “optimist,” recently visited Capitol Hill to advocate in favor of legislation to increase the number of high-skilled workers, noting that “addressing the 11 million undocumented folks is a lot bigger problem than high-skilled workers.” Google and Microsoft have previously weighed in, advocating in favor of addressing high-skilled worker shortages in science, technology, engineering, and math (STEM) through legislation. Dan Turrentine, TechNet’s vice president of government relations, asserted, “We respect the process to do as [Congress sees] fit, but we absolutely think it can get done this year.”

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4.         U.S. Consulate in Chennai Provides Helpful Tips to ABIL

On August 13, 2013, Alliance of Business Immigration Lawyers (ABIL) founder and past president, Angelo Paparelli, traveled to the U.S. Consulate in Chennai, India, to exchange views between the post and ABIL. He visited with Michael G. Cathey, Deputy Chief of Consular Services; Susan L. Dunathan, Vice Consul; and others. The following is a summary of the visit.

Mr. Cathey welcomed ABIL as part of extensive outreach conducted over the last two years. That outreach has included the business community, visiting attorneys, Business Executive Program (BEP) meetings, and public meetings with business groups. The purpose of the outreach is to educate stakeholders on how they can “help us to get to yes,” he said.

Mr. Cathey noted that the Chennai consulate processes 25% of the world’s H-1B visa applications and 30% of the world’s L-1 visa applications. The post consolidated adjudication of all Indian blanket L-1s in 2011. Fourteen adjudicators work there daily. They process 1,000 nonimmigrant visa (NIV) applications per day (1,300 per day in high season). Each officer conducts 120 NIV interviews per day in a four-to-five-hour time frame. Consular interviews average three to four minutes each (although Ms. Dunathan noted that easy cases from companies they know well, like Google, can be done in one to two minutes, thereby allowing some tougher cases to take up to six minutes for the interview).

Regarding L-1B specialized knowledge, Ms. Dunathan said it is far easier to say what specialized knowledge is not. She said she divides the applicant world between product makers (easier to find specialized knowledge) and service providers (much harder for specialized knowledge). Working with “proprietary tools” does not necessarily qualify for specialized knowledge, whereas developing such tools might.

Both Mr. Cathey and Ms. Dunathan said they don’t consider whether their decisions impact American job opportunities, with Mr. Cathey adding that their mission is to facilitate legitimate personal and business travel to the United States. He offered that for blanket L-1s, his officers operate under the “clearly approvable” standard, which is “way higher than the USCIS’s preponderance of the evidence” test.

Ms. Dunathan noted that “cover letters read like advertising materials” and that consular officers “don’t have time to read a sheaf of papers.” All agreed that the visa applicant’s answers to their “infinitesimally small universe of questions” is what must demonstrate visa eligibility. Mr. Cathey noted that applicants sometimes come woefully unprepared for interviews.

Mr. Cathey explained that in his view the Indian IT consulting companies land a project and then subordinates find human resources to staff it. The visa applicants often know nothing about how or why the project was procured. Mr. Cathey said that companies should focus their interview preparation on educating the applicant on the project. They should ask themselves: “Did our company get this project because we had some articulable value to contribute that was unique in the marketplace and the industry, or because we were the low bidder?” If the former, then specialized knowledge might be feasible; if the latter, then don’t use the L-1 as a substitute for a quota-depleted H-1B. Thus, he urged, a company should focus less on the number of years of the applicant’s experience, and more on why the project was procured. Ms. Dunathan observed that the quality of L-1 submissions plummets each time the H-1B annual cap is reached.

Turning briefly to L-1As, Mr. Cathey asserted that there is no minimum number of subordinates managed (such as 10) to qualify. But he maintained that the blanket L-1’s “clearly approvable” standard made it suitable only for “senior managers.”

Ms. Dunathan stated that she routinely denies L-1A for technology leads who oversee three programmers. In her view, the tech lead does the same work as the subordinates but merely has a scheduling function in addition, which is not management. Mr. Paparelli noted that first-line supervisors of professionals are L-1A managers under the USCIS regulations and that the authority to “recommend personnel decisions” is an indication of manager standing. He also noted, and Mr. Cathey agreed, that the consular officer’s role is not lawmaking or policy but law implementation. Mr. Cathey said his team only follows instructions from State and guidance from USCIS, and “if those change in a way that more folks are eligible, then our visa approvals will correspondingly increase.”

In subsequent comments, Mr. Cathey noted that ” we do not adjudicate companies, we adjudicate applicants. True, some companies may have higher approval rates than others, but that means their employees correctly fit and qualify for their respective visa categories.”

With respect to the Business Express Program (BEP), Mr. Cathey said the requirement of at least 50 cases per year is stringently applied. If the overall number dips below 50, he said, the company is dropped from the BEP.

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5.         State Dept. Sends Guidance to Posts on New Electronic Immigrant Visa Application

The Department of State recently sent a cable to all diplomatic and consular posts providing guidance and describing the timeline for deployment of the new electronic DS-260 (Immigrant Visa Application) and DS-261 (Choice of Address and Agent), which replaces the paper-based DS-230 (Application for Immigrant Visa Registration, parts I and II) and the DS-3032 (Choice of Address and Agent). Worldwide use of the DS-260/261 took effect for new cases on September 1, 2013.

The cable notes, among other things, the availability of software that includes a “biometric oath module” allowing posts to record an electronic fingerprint in lieu of  a written signature attesting to the oath administered before every immigrant visa interview.

The cable states that the Department intends to deploy the DS-260/261 as follows:

  • Beneficiaries submitting new cases that arrive at the National Visa Center (NVC) from U.S. Citizenship and Immigration Services (USCIS) on or after September 1 will be instructed to complete the DS-260/261 in lieu of the DS-230/3032. The State Department will update travel.state.gov to reflect this guidance and will remove the PDF versions of Forms DS-230 and DS-3032 from public circulation. If a beneficiary submits a DS-230, NVC will instruct him or her to re-submit a DS-260.
  • The State Department will not require DS-260s for beneficiaries of “pipeline” cases already in process at NVC on September 1 if: 1) the case has already been documentarily qualified and sent to scheduling, or 2) NVC receives a single submission of documents that makes a case documentarily qualified. For all other pipeline cases where NVC has occasion to send a “checklist” of missing documents after September 1, NVC will instruct petitioners/agents/beneficiaries to submit the DS-260 along with those missing documents, even if a DS-230 was already on file.
  • Those filing petitions locally overseas (with either USCIS or a consular section) on or after September 1 must submit a DS-260 once the petition is approved. Posts should instruct beneficiaries to enter the principal applicant’s DOB in YYYYMMDD format in lieu of an “Invoice ID” on the DS-260 login page.
  • For cases filed locally overseas before September 1, if beneficiaries have already submitted a DS-230 or received instruction to do so, the consular post should accept the DS-230. If a consular post has not yet provided beneficiaries instructions on how to submit their applications, the post must require the DS-260. The consular post should not, as a general rule, require the submission of a DS-260 if a valid, signed, unexpired DS-230 is already on file and requiring the DS-260 would result in a 221(g) refusal for an otherwise issuable case.
  • For Havana Only: Cuban Family Reunification Parole (CFRP) cases are the lone exception to the scenarios described above. The DS-260 will not allow an applicant whose case is not current to access the DS-260. For now, NVC will continue to solicit and accept Form DS-230 from applicants who opt in to the CFRP program.

Frequently asked questions are available at http://travel.state.gov/visa/immigrants/info/info_5248.html. Instructions are available at http://www.travel.state.gov/visa/immigrants/info/info_5164.html.

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6.         USCIS Implements Identity Verification at Field Offices

U.S. Citizenship and Immigration Services (USCIS) has begun employing “Customer Identity Verification” (CIV) in its domestic field offices. The tool allows applicants to submit biometric data (fingerprints and photographs) when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit. It will be phased in by October 21, 2013.

After an applicant arrives at a field office, clears security, and is called to the counter, USCIS will electronically scan two fingerprints and take a picture to verify identity. The process takes a few minutes and applies only to those who have an interview or are receiving evidence of an immigration benefit. Those who come to a USCIS office for InfoPass appointments or to accompany an applicant will not undergo this process.

Currently, USCIS requires applicants and petitioners requesting immigration or naturalization benefits to visit an Application Support Center (ASC) to provide biometric data. “This requirement, along with providing a government-issued document for examination, will not change,” USCIS said.

CIV connects instantly to the United States Visitor and Immigrant Status Indicator Technology’s (US-VISIT) Secondary Inspections Tool (SIT). SIT is a Web-based application that processes, displays, and retrieves biometric and biographic data. US-VISIT also links databases associated with border inspections and security.

The announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35
e66f614176543f6d1a/?vgnextoid=4a4b167b1a3f0410VgnVC
M100000082ca60aRCRD&vgnextchannel=e7801c2c9be442
10VgnVCM100000082ca60aRCRD
.

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7.         DACA Reaches One-Year Mark

The Deferred Action for Childhood Arrivals (DACA) started on August 15, 2013. One year later, the numbers for August 2013 showed that a total of 588,725 applications had been received. Of those, 567,563 were accepted and 21,162 were rejected. The average number of applications accepted per day as of August was 2,158.

The report for August 2013 is available at
http://www.uscis.gov/USCIS/Resources/Reports%20and%20
Studies/Immigration%20Forms%20Data/All%20Form%20Ty
pes/DACA/daca-13-9-13.pdf
.

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8.         Thousands Naturalized at Constitution Day and Citizenship Day Ceremonies

U.S. Citizenship and Immigration Services naturalized more than 8,000 candidates on September 17, 2013, which was Constitution Day and Citizenship Day. More than 18,000 new citizens were naturalized during more than 180 ceremonies between September 16 and September 23. The event commemorated the signing of the U.S. Constitution in 1787.

A list of the ceremony locations and dates is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f3
5e66f614176543f6d1a/?vgnextoid=2d1c6056a0211410Vgn
VCM100000082ca60aRCRD&vgnextchannel=a2dd6d26d1
7df110VgnVCM1000004718190aRCRD
.

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9.         Senate Reauthorizes Special Immigrant Visa Program for Iraqis

On September 30, 2013, the Special Immigrant Visa (SIV) program for Iraqi nationals who worked for or on behalf of the United States government in Iraq was set to expire. The Senate unanimously reauthorized it that night. It now goes to the House of Representatives, which has voted to reauthorize the program in the past.

The program covers Iraqi nationals who have been employed by or on behalf of the United States government in Iraq for at least one year, from March 20, 2003, to the present. The expiration date does not apply to spouses and unmarried children who are following to join a principal applicant.

The earlier announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919
f35e66f614176543f6d1a/?vgnextoid=a5376056a0211410V
gnVCM100000082ca60aRCRD&vgnextchannel=e7801c2c
9be44210VgnVCM100000082ca60aRCRD
. A related statement by Sens. John McCain (R-Ariz.) and Jeanne Shaheen (D-N.H.) following the Senate reauthorization is available at
http://www.mccain.senate.gov/public/index.cfm?FuseAction=
PressOffice.PressReleases&ContentRecord_id=74da8f4f-d
5b9-c7c0-28c2-75d8e98727c4
.

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10.       ABIL Global: Canada

Significant new changes are effective for the QuЋbec Skilled Worker Program and the Labour Market Opinion application process; other news.

New Québec Skilled Worker Program Requirements

On August 1, 2013, several important legislative changes took effect to the Québec Regular Skilled Worker Program and the Québec Experience Program for Temporary Workers. These changes will remain effective until March 31, 2014. The Québec Regular Skilled Worker Program requires applicants to attain a sufficient number of points to be issued Québec Selection Certificates enabling applications for Canadian permanent residence. The Québec Experience Program for Temporary Workers and for graduating students is an accelerated program that permits qualifying workers who hold full-time skilled jobs in Québec for at least one year, and certain graduating college and university students, to be issued Québec Selection Certificates for permanent residence.

One major change to the Québec Regular Skilled Worker Program is the elimination of the educational requirement for applicants under the List of Areas of Training of the Québec Ministry of Immigration and Cultural Communities (MICC). While applicants will continue to be attributed points if their education is on the list, it is no longer required to qualify for the Québec Regular Skilled Worker Program. A maximum number of 20,000 skilled worker applications will be accepted.

A new order of priority for application processing has been established. Applications are processed in the following priority order: (1) applications to the Québec Experience Program; (2) applications to the Québec Regular Skilled Worker Program that include a validated employment offer; (3) applications to the Québec Regular Skilled Worker Program from applicants who are attributed points for their area of education; and (4) all other applications submitted under the Québec Regular Skilled Worker Program.

The French language requirements have increased for the Québec Regular Skilled Worker Program and the Québec Experience Program. For the Québec Regular Skilled Worker Program, points are now awarded for both oral and written knowledge of French, instead of the previous requirement of exclusively oral knowledge of French. Applicants are only attributed points for their knowledge of French if they demonstrate an advanced intermediate level. For the Québec Experience Program, applicants can only qualify now if they demonstrate an advanced intermediate-level oral knowledge of French, instead of the previous requirement of an intermediate-level oral knowledge of French.

More information on these changes and answers to frequently asked questions are available at the Québec MICC website at http://www.immigration-quebec.gouv.qc.ca/en/informations/rules-procedures.html.

New Changes to the Work Permit Labour Market Opinion Application Process

Effective July 31, 2013, Service Canada introduced a number of significant changes to the labour market opinion (LMO) in addition to the many changes introduced since April 2011. These latest amendments to the Immigration and Refugee Protection Regulations have introduced a new language assessment factor. As a result, only English and French may be identified as a job requirement in advertisements and LMO requests, unless it can be demonstrated that another language is essential for the position.

Additionally, employers now must make greater efforts to hire Canadians before they will be eligible to apply for temporary foreign workers. Employers must advertise an available position for at least four weeks before applying for an LMO, and must continue to actively seek qualified Canadians to fill the position until the LMO has been issued. Employers must also advertise on the national Service Canada Job Bank website and use at least two other recruitment methods consistent with the advertising practices for the occupation.

A new LMO application form has also been released, including additional questions intended to assist program officers in assessing the impact on the Canadian labor market and curbing the practice of using foreign workers in Canada temporarily to facilitate the outsourcing of Canadian jobs.

Another change is that an application fee of CAD $275.00 must be paid for each position requested to cover processing.

Immigrant and Non-Immigrant Applicants (and Their Lawyers) Relieved As Foreign Service Workers To Return To Full-Time Work At Canadian Visa Offices

Canada’s foreign service has reached a deal on a new contract with the Canadian federal government, ending a lengthy dispute, including strikes, that have created an extensive backlog to visa processing and other consular services abroad. The government agreed to increase base pay for senior ranks of the foreign service, bringing it more in line with what the union had argued were comparable positions elsewhere in government. The government had previously resisted salary increases by taking the position that the jobs were already well-paid.

The Federal Skilled Trades Program—Expedited Immigration Processing

The government of Canada launched the Federal Skilled Trades Program (FSTP) in January 2013 to facilitate the immigration of skilled tradespeople who meet Canada’s current and evolving trade needs. Applicants are assessed on relevant criteria such as language ability, practical training, and work experience, rather than on formal academic education.

The FSTP was also created in response to requests from Canadian employers for skilled workers to fill labor shortages, particularly in the natural resources and construction sectors. Eligible applicants include carpenters, plumbers, contractors and supervisors of electrical trades, construction trades, installers, repairers and servicers, supervisors of logging and forestry or mining and quarrying, contractors and supervisors of oil and gas drilling services, and logging machinery operators, among various other trades.

To attract and retain qualified, in-demand candidates, Citizenship and Immigration Canada’s (CIC) goal is to process applications in this category as quickly as possible. Current processing time for FSTP applications is three to four months. While this outcome is excellent for Canada’s trade industry, it is unfortunate that business owners and skilled, top-tier management employees essential to some of the largest companies in Canada continue to await receipt of permanent residence in queues of up to three years.

Parent and Grandparent Super Visas—How Super is this Visa?

Parents and grandparents of Canadian citizens and permanent residents, whether visa exempt or not, can apply for a Parent and Grandparent Super Visa to visit their children and grandchildren in Canada.

The benefit of applying for this visa is that it is valid for up to 10 years and allows an applicant to remain in Canada for up to 24 months at a time without the need to renew their status. The process for getting a Super Visa is not simple, however. Applicants must provide proof that the host child or grandchild meets a minimum income level, demonstrate that they have purchased comprehensive Canadian medical insurance (which can cost $20,000), and undergo immigration medical examinations. Moreover, extensive background, residence, travel, and security information is required.

Although the government is issuing more than 1,000 Super Visas monthly, this new application process has created an extraordinarily expensive mandatory medical insurance requirement for parents and grandparents who are not visa exempt or, if visa exempt, for parents or grandparents wishing to remain in Canada for more than six months. It has created a lucrative new insurance market for Canadian insurance companies. The new Super Visa has also resulted in high refusal levels for traditional visa applications as well as visitor record renewals.

Citizenship Law Changes

Citizenship Testing Procedures Amended

Citizenship applicants in Canada who fail their first citizenship test will now have the opportunity to rewrite the test rather than wait for an appointment with a citizenship judge. In the past, individuals who failed their knowledge test had to wait several months for an appointment with a citizenship judge, who would then make a final decision on their case. Under the new procedure, applicants will be informed of their results immediately following their test. Individuals who fail but who have met all other criteria will be provided with a date to rewrite the test a few weeks later. Those who pass their test will be scheduled for a citizenship ceremony. Additionally, individuals who are currently waiting to see a citizenship judge because they had previously failed the test will also be invited to rewrite the test.

Citizenship Applications to be Separated for Approval

All family members listed on one application no longer must be approved at the same time. Previously, there were cases where all family members who had applied together were held up in obtaining citizenship when only one family member had failed a knowledge or language test. Successful applicants will now be informed that they may have their applications processed independently of other family members. This means that fewer people will need to wait for their applications to be processed and can proceed directly to being granted citizenship.

Government Hires More Citizenship Judges

In an attempt to reduce the growing citizenship backlog, the government of Canada announced an investment of $44 million over two years toward improving citizenship processing. It is hoped that these funds will assist the government to address the growing backlog on straightforward citizenship applications that are currently in a queue of 25 months or more. The government is also increasing the number of citizenship judges in Canada so they can make more decisions on citizenship applications and hold more citizenship ceremonies.

New Citizenship Test Preparation Resource

The citizenship eligibility test study guide, Discover Canada: The Rights and Responsibilities of Citizenship, has now been made available as an integrated audio eBook download, for a more efficient way to learn about Canada’s history, values, symbols, and important institutions. The audio eBook allows people to hear the text of the guide being read aloud as they follow along on their e-readers, smart phones, or tablets. CIC was the first Canadian government department to produce an eBook. It has been downloaded almost 60,000 times in the past year and a half. Well-known Canadians have lent their voices for portions of the eBooks in English and French.

Canadian Government is Aggressively Prosecuting Residence Fraud in Citizenship Cases

Compliance enforcement on applications for Canadian citizenship has increased dramatically. Applicants who are found to have made false representations or fraudulent claims, or to have knowingly concealing material circumstances in the citizenship process—for example, pretending to be present in Canada to meet the residence requirements for obtaining citizenship—could face charges under the Immigration and Refugee Protection Act or the Criminal Code, and/or have their citizenship revoked. The government of Canada offers a tip line through the CIC Call Centre where tips on suspected citizenship fraud cases may be reported.

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11. Firm In the News

Cyrus Mehta spoke on “Ethics and Professional Responsibility—When You Leave Your Comfort Zone” at the Northern Border Immigration Fall Conference in Albany, New York, on September 20, 2013, sponsored by the American Immigration Lawyers Association’s Upstate New York Chapter and the Albany County Bar Association.

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September 2013 Immigration Update

Headlines:

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

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Details:

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.

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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.

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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
http://www.oalj.dol.gov/Decisions/ALJ/PER/2011/In_re_JP_MORGAN_CHASE_and
__2011PER00635_(MAR_27_2012)_101612_CADEC_SD.PDF
.

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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.

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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/.

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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.

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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.

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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.

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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.

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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
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=405247ce85e50410VgnVCM100000082ca60aRCRD&vgnextchannel=
e7801c2c9be44210VgnVCM100000082ca60aRCRD
.

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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
https://www.federalregister.gov/articles/2013/08/09/2013-18775/expansion-of-global-
entry-eligibility-to-certain-citizens-of-the-republic-of-korea-the-federal
.

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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.

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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.

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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.

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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.

The updates are available at http://travel.state.gov/visa/fees/fees_3732.html. The full schedule of visa fees and validity periods is available at http://travel.state.gov/visa/fees/fees_3733.html.

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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.

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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.

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August 2013 Immigration Update

Headlines:
  1. DHS Issues FAQ on Supreme Court’s DOMA Ruling – Secretary of Homeland Security Janet Napolitano said she has “directed [USCIS] to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
  2. DOL Labor Certification Registry Goes Live – The registry is intended to provide the public with access to “appropriately redacted” copies of H-1B, H-1B1, E-3, H-2A, H-2B, and permanent labor certification documents issued by OFLC, as well as quarterly and annual case disclosure data.
  3. DOL Proposes To Delay Effective Date of H-2B Wage Methodology Final Rule Indefinitely – The wage rule revised the methodology by which the DOL calculates the prevailing wage to be paid to H-2B workers and U.S. workers recruited in connection with temporary labor certifications to employ H-2B nonimmigrant worker
  4. USCIS Updates DOMA FAQ – The latest FAQ notes that U.S. citizens and lawful permanent residents in same-sex marriages to foreign nationals can now sponsor their spouses for family-based immigrant visas, and that spouses who were married in a U.S. state or foreign country that recognizes same-sex marriage, but who live in a state that does not, can file immigrant visa petitions for their spouses.
  5. ABIL Global: South Africa – A significant amendment to the law is expected in the next few months that will affect transferring employees and their families to South Africa.
  6. ABIL Global: France – Under a new law, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses. Also, the deployment of biometrics has led to modifications in procedures for applying for a residence permit.
  7. Firm In The News…
 Details:
  1. DHS Issues FAQ on Supreme Court’s DOMA Ruling

The Department of Homeland Security issued a FAQ on July 1, 2013, in response to the Supreme Court’s decision on June 26, 2013, United States v. Windsor, which struck down the 1996 Defense of Marriage Act (DOMA) as unconstitutional. That law had prohibited the federal government from recognizing same-sex marriages, regardless of whether they were legally valid in certain states or in other countries, and from conferring federal benefits on same-sex spouses that are enjoyed by heterosexual spouses.

The FAQ notes that Secretary of Homeland Security Janet Napolitano said she has “directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” The FAQ provides the following questions and answers:

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?

A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?

A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

About 30,000 same-sex binational couples include spouses who may now be eligible for immigration benefits. The Supreme Court’s ruling applies only to same-sex couples in the 13 states that recognize gay marriage, not to the other states that don’t. Legal observers disagree whether a gay couple who gets married in one state and moves to another state that doesn’t recognize the marriage will still be entitled to federal benefits.

USCIS’s new FAQ is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=fbfe0b8497b9f310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The Supreme Court’s DOMA decision is available at http://www.cnn.com/interactive/2013/06/politics/scotus-ruling-windsor/index.html?hpt=hp_t1. Details and additional coverage are available at http://www.scotusblog.com/case-files/cases/windsor-v-united-states-2/. Another FAQ about the ruling’s impact on immigration cases is available at http://immigrationequality.org/2013/06/the-end-of-doma-what-your-family-needs-to-know/.

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  1. DOL Labor Certification Registry Goes Live

The Department of Labor (DOL) recently announced implementation of the Labor Certification Registry (LCR) on the Office of Foreign Labor Certification’s (OFLC) iCERT Visa Portal System website. The LCR is intended to provide the public with access to “appropriately redacted” copies of H-1B, H-1B1, E-3, H-2A, H-2B, and permanent labor certification documents issued by OFLC, as well as quarterly and annual case disclosure data.

The LCR displays all certified H-1B1 and E-3 Labor Condition Applications (LCA) and permanent labor certifications, dating back to April 15, 2009. However, the DOL said it is experiencing technical difficulties with the display of approved H-1B LCAs. In addition, due to the historical paper-based filings of H-2A and H-2B applications, the DOL said that it must manually redact and upload these labor certification documents to the LCR. Therefore, only a limited number of records covering fiscal year 2013 are currently available. The agency said it anticipates that H-1B LCAs will be available soon, and that staff will continue to upload historical H-2A and H-2B documents in the coming months.

The registry is available at http://icert.doleta.gov/index.cfm?event=ehLCJRExternal.dspLCRLanding. A related Federal Register notice is available at http://www.gpo.gov/fdsys/pkg/FR-2013-01-24/pdf/2013-01406.pdf. The announcement is available at http://www.foreignlaborcert.doleta.gov/news.cfm.

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  1. DOL Proposes To Delay Effective Date of H-2B Wage Methodology Final Rule Indefinitely

The Department of Labor (DOL) proposes to delay indefinitely the effective date of the “Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program” final rule (2011 wage rule) “to comply with recurrent legislation that prohibits the [DOL] from using any funds to implement it, and to permit time for consideration of public comments sought in conjunction with an interim final rule published April 24, 2013, 78 FR 24047.”

The 2011 wage rule revised the methodology by which the DOL calculates the prevailing wage to be paid to H-2B workers and U.S. workers recruited in connection with temporary labor certifications to employ H-2B nonimmigrant workers. The 2011 wage rule was originally scheduled to become effective on January 1, 2012, and the effective date has been extended a number of times, most recently to October 1, 2013. The Department is now proposing to delay the effective date of the 2011 wage rule “until such time as Congress no longer prohibits the [DOL] from implementing” it.

DOL explained that, among other things, the appropriations bill enacted in November 2011 prevented funding but did not prohibit the 2011 wage rule from going into effect. The DOL explained that the 2011 wage rule would supersede and nullify the prevailing wage provisions at 20 CFSR 655.10(b) of the DOL’s existing H-2B regulations. Accordingly, in light of the November 2011 appropriations bill, the DOL decided to delay the effective date of the 2011 wage rule. If the wage rule had taken effect, the DOL explained, “[s]uch an occurrence would have rendered the H-2B program inoperable because the issuance of a prevailing wage determination is a condition precedent to approving an employer’s request for an H-2B labor certification.”

Subsequent appropriations legislation contained the same restriction prohibiting the DOL’s use of appropriated funds to implement, administer, or enforce the 2011 wage rule and, the DOL said, necessitated subsequent extensions of the effective date of that rule. The DOL therefore now proposes to delay the effective date indefinitely until such time as the rule can be implemented with appropriated funds.

Additionally, the DOL and the Department of Homeland Security (DHS) recently promulgated an interim final rule, requesting comments, to establish a new wage methodology in response to CATA v. Solis, decided in 2013. The interim final rule requires prevailing wage determinations issued using the Occupational Employment Statistics (OES) survey to be based on the mean wage for an occupation in the area of intended employment, without tiers or skill levels. The comment period closed on June 10, 2013, and the DOL and DHS are reviewing the comments and determining whether further revisions to 20 CFSR 655.10(b) are warranted.

DOL explained that the confluence of the recent Congressional prohibition of implementation of the 2011 wage rule and the DOL’s current review and consideration of comments made in response to the proposed new wage methodology require the indefinite delay of the effective date of the 2011 wage rule. Even if Congress lifts the prohibition of implementation of the 2011 wage rule, the DOL said it would need time to assess the current regulatory framework; consider any changed circumstances, novel concerns, or new information received; and minimize disruptions.

The DOL invites comment until August 9, 2013, on the proposed indefinite delay of the effective date of the 2011 wage rule. If Congress should no longer prohibit implementation, the DOL would publish a notice in the Federal Register within 45 days on the status of 20 CFR 655.10 and the effective date of the 2011 wage rule.

The DOL’s Federal Register notice of proposed rulemaking is available at http://www.ofr.gov/OFRUpload/OFRData/2013-17676_PI.pdf.

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4.  USCIS Updates DOMA FAQ

U.S. Citizenship and Immigration Services has updated its frequently asked questions (FAQ) on same-sex marriages under the Supreme Court’s recent decision holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. The latest FAQ notes that U.S. citizens and lawful permanent residents in same-sex marriages to foreign nationals can now sponsor their spouses for family-based immigrant visas. Their eligibility will be determined according to applicable immigration law and they will not be denied because of a same-sex marriage.

The FAQ also notes that spouses who were married in a U.S. state or foreign country that recognizes same-sex marriage, but who live in a state that does not, can file immigrant visa petitions for their spouses. The FAQ states that as a general matter, “the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes.”

The FAQ also includes information about applying for benefits, what to do about previous denials, changes in eligibility based on same-sex marriage, residence requirements, inadmissibility waivers. It is available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=2543215c310af310VgnVCM100000082ca60aRCRD&vgnextchannel=2543215c310af310VgnVCM100000082ca60aRCRD.

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5. ABIL Global: South Africa

A significant amendment to the law is expected in the next few months that will affect transferring employees and their families to South Africa.

Transferring Employees and Their Families to South Africa

Under current South African immigration law, a company can transfer or deploy one or more of its employees to a company that is “operating in South Africa.” This is on condition that the two companies are in a holding, subsidiary, or “affiliate relationship.”

There are three key conditions to qualify for such a permit. First, the person must be an existing employee who will return to his or her employment at the offshore company at the end of the term of the deployment. Second, the company in South Africa must in fact be operating. And third, there must be a qualifying relationship between the two companies. The term “affiliate relationship” is not defined and deliberately allows for considerable flexibility. These permits are usually issued for a two-year period and cannot be renewed or extended.

The permit requirements fall into two broad categories: those that are specific to the intra-company transfer work permit and those that are required for any permit that authorizes a period of residence in South Africa of more than three months. The key requirements specific to the intra-company transfer work permit include, among other things, a copy of the employee’s offshore contract and proof that he or she has the skill needed for the assignment in South Africa.

All family members (assuming they are not South African citizens or permanent residents) accompanying the foreign national to be transferred, no matter their ages, must apply for appropriate permits to reside in South Africa.

As may be suggested by the “transfer” permit’s name, South Africa’s permit system is activity-specific. So if the family includes dependents who will be studying at a tertiary institution or a school (but excluding a pre-school), they must obtain study permits before they can attend the institution. If the dependent is not attending school or is home-schooling, he or she needs a long term visitor permit to accompany the holder of the transfer permit.

For purposes of residence in South Africa, the Immigration Act recognizes non-formalized life partnerships and does not discriminate based on sexual orientation. Couples do not need to be married or in a civil union for purposes of obtaining a residence permit. But the couple will need to prove the fact of the spousal relationship. The term “spouse” refers to the partner, whether married or not. The relationship must be monogamous. The spouse also must obtain a long-term visitor permit to accompany the holder of the transfer permit.

There is no special dispensation for the spouse who wishes to study, be employed, or be self-employed, while in South Africa. They (and/or the place of learning or employer) must comply with all the relevant prescribed requirements of the appropriate temporary residence permit. This is the case even if the spouse wishes to work (or remain working) for an employer back home even where the company does not have a presence in South Africa. [There is a special dispensation for persons who are in a spousal relationship with a South African citizen or permanent resident. Please consult your Alliance of Business Immigration Lawyers attorney about this.]

Under current policy, the South African Department of Home Affairs prefers that people seeking to take up a post in South Africa (and their families), should apply for the appropriate permit at the nearest South African embassy or consulate and have obtained the permit(s) before they leave for South Africa. Application can be made for all the appropriate permits (for the transferee, the spouse, and the children) at the same time. The consequent permit, if approved, will be endorsed into the applicant’s passport.

The general rule is that foreign nationals must at all times have a permit in their passport that accurately describes the purpose and period for which they have been authorized to enter and remain in South Africa. If those circumstances change, the person must apply to the Department of Home Affairs for authorization to remain in the country under those changed circumstances.

A significant amendment to South African law is expected in the next few months. It is imperative that proper and comprehensive advice be sought from a skilled immigration attorney.

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6.     ABIL Global: France

Under a new law, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses. Also, the deployment of biometrics has led to modifications in procedures for applying for a residence permit.

Same-Sex Marriage Rights Conferred Under French Immigration Procedures

The Act of May 17, 2013, modifies section 143 of the Civil Code to read: “Marriage is contracted by two persons of opposite sex or the same sex.” France thus joins the countries that have legalized marriage between persons of the same sex. Those countries include Belgium, Spain, Canada, some states in the United States and Brazil, the Netherlands, Sweden, New Zealand, South Africa, Mexico (Federal District), Argentina, Norway, Denmark, Portugal, Iceland, and Uruguay. The new law means that in France, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses.

  • General Provisions; Conflict of Laws In Other Countries; Consular MarriageThe above implies that two foreigners of the same sex can marry when one of them resides or is domiciled in France. However, this rule does not apply to nationals of countries with which France is bound by bilateral agreements (Poland, Algeria, Tunisia, Morocco, republics of the former Yugoslavia, Cambodia and Laos), which provide that the law governing conditions for marriage is the personal law. The marriage, however, may take place in a non-prohibitive state having no bilateral agreement with the country of the spouses.A consular marriage (registered at the French consulate) between same-sex French nationals would not raise an issue. However, a consular marriage between a French national and a foreign national may be more complex in consular posts in countries that prohibit same-sex marriage. In such case, the Civil Code provides that marriage may take place in France.
  • The law of May 17, 2013, also provides that marriages between same-sex couples, validly celebrated abroad at a time when the French law forbade it, may be recognized retroactively.
  • Foreign nationals may find themselves in situations where their marriages in France are not recognized by their countries of origin.
  • Article 202-1 of the Civil Code provides that the conditions for marriage are governed by family law, but article 202-2 provides that two persons of the same sex can marry when the family law or the law of the state of residence of one spouse permits. This arrangement allows avoidance of the application of the family law of one spouse prohibiting marriage between persons of the same sex when the marriage took place on the territory of a state recognizing marriage between persons of the same sex.
  • Impact on French Immigration Rights of Foreign Nationals Moving to FranceA same-sex marriage between a foreign national and a French national will allow the issuance of a visa and a residence permit to the foreign national as the spouse of a French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.Recognition of marriage for same-sex couples could also give rise to new legal actions when a decision refusing stay may be considered as disproportionate interference with the rights to private and family life, under Article 8 of the European Convention on Human Rights.
  • The marriage between a third-country national in the European Union with a European citizen is expected to allow the issuance of a residence permit as a European spouse under Articles L121-3 to L121-5 CESEDA.
  • Derivative residence and worker rights known as “accompanying family rights” will be applicable to married foreign workers under Intra-Company Transfer, EU Blue Card, and Skills and Talents status, regardless of the sexual identity of the spouses when the marriage is celebrated in France or recognized by France (marriage between two foreigners) on the basis of the new provisions of the Civil Code and Article L313-11-3 CESEDA (code de l’entrée et du séjour des étrangers et du droit d’asile).

Biometrics Deployed

The deployment of biometrics in all French departments (département, or administrative area) has led to modifications in procedures for applying for a residence permit and requires an additional appearance at the Prefecture for fingerprinting. This change also will affect the beneficiaries of one-stop Office Français de l’Immigration et de l’Intégration (OFII) processing (e.g., Intra-Company Transferees, EU Blue Cards, Skills and Talents) by the end of the year.

    • Gradual Deployment of Biometrics and Modifications in Residence Permit Application ProcessAfter a first stage completed in 2011 with the release of the new uniform format for residence permits, the second step will be to collect and insert fingerprints of foreign nationals collected by the Prefecture into the integrated residence electronic component of the permit.Fingerprints will be valid for five years.
  • The fingerprinting will require modifications of the procedures for applying for a residence permit. Any person requesting a residence permit (first application or renewal) will be required to go in person to the Prefecture for fingerprinting, as noted above. A deposit at City Hall will no longer be possible and procedures by mail will be affected.
  • A regulation of the Council of the European Union (EC), No. 380/2008 of April 18, 2008, mandates a new format for biometric residence permits comprising an electronic component into which are inserted a photograph and two fingerprint images. Under this regulation, the Ministry of Interior issued two circulars in April 2011 and June 2012, describing the details on implementing the new residence permit requirement and the progressive deployment of biometrics, which is now effective in several departments.
  • Impact on Categories of Foreigners Benefiting From the One-Stop OFII Process

To date, the three categories of foreigners benefiting from the one-stop OFII process (Intra-Company Transferees, EU Blue Cards, Skills and Talents), as well as family members of holders of these permits, have been exempted temporarily from biometric compliance in the departments using the one-stop OFII process. This exemption is valid until completion of the deployment of biometrics. France had aimed at full deployment by the end of the first half of 2013, but only a few departments have implemented biometrics to date: Loire-Atlantique, Alpes-Maritimes, Hauts-de-Seine, SaÔne-et-Loire, Essonne, Seine-et-Marne, and Puy-de-DÔme. However, the deployment will affect all French departments by the end of the year.

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7. Firm In The News

Cyrus Mehta was a Speaker at the New York City Bar, Summer Series, on Careers in Immigration Law, held on July 18, 2013.

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July 2013 Immigration Update

Headlines:

1. Senate Passes Comprehensive Immigration Reform; House Passage Uncertain – On June 27, 2013, the full Senate passed comprehensive immigration reform legislation, 68-32.

2. Supreme Court’s DOMA Ruling Opens Door to Immigration Benefits for Same-Sex Spouses – About 30,000 same-sex binational couples may now be eligible for immigration benefits, thanks to the Supreme Court’s striking down the 1996 Defense of Marriage Act.

3. Border Patrol Agents Get 30-Year Sentence for Smuggling Migrants Into United States – The agents left their border posts to transport hundreds of migrants in Border Patrol vehicles from Tijuana to California.

4. DOL Releases New Version of Application for Prevailing Wage Determination – Requests submitted before June 18 using the iCERT Visa Portal System based on the previous ETA Form 9141 will be completed and returned using that version of the form.

5. Temporary Protected Status Extended for Salvadorans – DHS has extended TPS for eligible nationals of El Salvador for an additional 18 months, beginning September 10, 2013, and ending March 9, 2015.

6. USCIS Office Permanently Closing in Tegucigalpa, Honduras – The USCIS Field Office in San Salvador, El Salvador, will assume Tegucigalpa’s former jurisdiction (Costa Rica, Honduras, and Nicaragua) and the U.S. Embassy in Tegucigalpa will assume responsibility for certain requests.

7. USCIS Opens Field Office in Guangzhou, China – USCIS has opened the Guangzhou Field Office, which has jurisdiction over services in various provinces.

8. Firm In The News

Details:

1. Senate Passes Comprehensive Immigration Reform; House Passage Uncertain 

On June 27, 2013, the full Senate passed comprehensive immigration reform legislation, 68-32. All Democrats voted for the bill; 14 Republicans joined them. The bill includes a lengthy pathway to provisional legal status, permanent residence, and eventual U.S. citizenship for up to 11 million undocumented persons. It also includes enforcement and border control measures like finishing a 700-mile fence along the border with Mexico, deploying an additional 20,000 Border Patrol agents, and mandating E-Verify. Despite the potential costs, the Congressional Budget Office estimated that if the bill became law, it would reduce the United States’ deficit by almost $900 billion over the next 10 years.

A celebratory atmosphere ensued after the vote. Despite admonishments from Vice President Joseph Biden, who presided over the vote, chants of “Yes we can” and “Si se puede” were heard from the public gallery after the bill passed. Sen. Patrick Leahy (D-Vt.) called it a “historic day.”

Meanwhile, a bipartisan group in the House is working on its own version of comprehensive immigration reform, but observers expect that the House may pass immigration-related legislation piece by piece instead of voting for a comprehensive bill. House Speaker John Boehner said, “[T]he House is not going to take up and vote on whatever the Senate passes. We’re going to do our own bill.” He said representatives would go home for recess and “listen to our constituents. And when we get back, we’re going toЙhave a discussion about the way forward.”

Details and the text of the bill, S.744, are available at http://thomas.loc.gov/cgi-bin/bdquery/z?d113:s.0744:.

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2.    Supreme Court’s DOMA Ruling Opens Door to Immigration Benefits for Same-Sex Spouses

About 30,000 same-sex binational couples may now be eligible for immigration benefits, such as permanent residence based on marriage, thanks to the Supreme Court’s decision on June 26, 2013, in United States v. Windsor, which struck down the 1996 Defense of Marriage Act (DOMA) as unconstitutional. That law had prohibited the federal government from recognizing same-sex marriages, regardless of whether they were legally valid in certain states or in other countries, and from conferring federal benefits on same-sex spouses that are enjoyed by heterosexual spouses.

Janet Napolitano, Secretary of Homeland Security, said she applauded the decision. “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws,” she said. U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas said that USCIS has a list of marriage-based green card petitions that were filed since February 2011 by same-sex binational couples but were denied. He hinted that the cases might be reopened once implementing instructions issue. Secretary Napolitano issued further guidance indicating that cases can be filed immediately and that they will be treated equally like any other marriage.

The Supreme Court’s ruling doesn’t apply to same-sex couples in states that don’t recognize gay marriage, only to the 13 states that do. There is disagreement among legal observers about whether a gay couple who gets married in one state and moves to another state that doesn’t recognize the marriage will still be entitled to federal benefits.

The DOMA decision is available at
http://www.cnn.com/interactive/2013/06/politics/scotus-ruling-windsor/index.html?hpt=hp_t1.
Details and additional coverage are available at http://www.scotusblog.com/case-files/cases/windsor-v-united-states-2/.
A FAQ about the ruling’s impact on immigration cases is available at
http://immigrationequality.org/2013/06/the-end-of-doma-what-your-family-needs-to-know/
. The DHS FAQ is available at
http://www.dhs.gov/topic/implementation-supreme-court-ruling-defense-marriage-act

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3.   Border Patrol Agents Get 30-Year Sentence for Smuggling Migrants Into United States

A U.S. District Court judge recently sentenced two Border Patrol agents, Raul Villareal and his brother Fidel, to 30 years in prison for smuggling hundreds of people from Mexico into the United States. Judge John Houston said he deemed their actions a threat to national security. He also ordered one of the brothers to pay a $250,000 fine. The brothers plan to appeal.

An informant notified U.S. Immigration and Customs Enforcement about the operation, which involved the agents leaving their border posts to transport the migrants in Border Patrol vehicles from Tijuana to California. The brothers charged the groups of immigrants, numbering 10, about $10,000 per group. The judge said the brothers made more than $700,000. When the brothers realized they were being investigated, they fled to Tijuana, where they were arrested two years later and extradited to the United States.

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4.  DOL Releases New Version of Application for Prevailing Wage Determination

The Department of Labor (DOL) has released a new version of Form 9131, Application for Prevailing Wage Determination.

The revised version of Form 9141 was implemented on the iCERT Portal on June 18, 2013. The DOL made minor changes “to clarify information needed for more efficient application processing.”

Requests submitted before June 18 using the iCERT Visa Portal System based on the previous ETA Form 9141 will be completed and returned using that version of the form, the DOL said. Any form initiated in a user’s system but not yet submitted by that date, however, will not be accepted. In addition, requests on the previous version of Form 9141 can no longer be “reused” in iCERT to submit a new request for processing. Users can complete a new form by logging into their iCERT Portal account, clicking on “Begin New ETA Form 9141,” and completing all the mandatory fields.

The fillable form is available at http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9141.pdf.
The iCERT Portal is available at http://icert.doleta.gov/.

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5.   Temporary Protected Status Extended for Salvadorans

The Department of Homeland Security has extended temporary protected status (TPS) for eligible nationals of El Salvador for an additional 18 months, beginning September 10, 2013, and ending March 9, 2015.
Current Salvadoran beneficiaries seeking to extend their TPS status must re-register during the 60-day re-registration period that began May 30, 2013, and ends July 29, 2013. U.S. Citizenship and Immigration Services (USCIS) is encouraging beneficiaries to register as soon as possible.

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Salvadoran TPS beneficiaries who re-register during the registration period will receive a new EAD with an expiration date of March 9, 2015. 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 El Salvador EADs bearing a September 9, 2013, expiration date for an additional six months. These existing EADs are now valid through March 9, 2014.

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

TPS applicants may request that USCIS waive any or all the fees by filing a Form I-912, Request for Fee Waiver, or by submitting a personal letter requesting that these fees be waived. Failure to submit the required filing fees or a properly documented fee waiver request will result in the rejection of the TPS application, USCIS noted.

The USCIS notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=9f52a089685fe310VgnVCM100000082ca60aRCRD&vgnextchannel=
a2dd6d26d17df110VgnVCM1000004718190aRCRD
.

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6.  USCIS Office Permanently Closing in Tegucigalpa, Honduras

U.S. Citizenship and Immigration Services (USCIS) permanently closed its field office in Tegucigalpa, Honduras, on June 20, 2013. The USCIS Field Office in San Salvador, El Salvador, has assumed Tegucigalpa’s former jurisdiction (Costa Rica, Honduras, and Nicaragua) and the U.S. Embassy in Tegucigalpa has assumed responsibility for certain requests.
The USCIS notice includes details on forms, services, and filing instructions, at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=ef4da6dc45bfe310VgnVCM100000082ca60aRCRD&vgnextchannel=
e7801c2c9be44210VgnVCM100000082ca60aRCRD
.

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7. USCIS Opens Field Office in Guangzhou, China

U.S. Citizenship and Immigration Services (USCIS) has opened the Guangzhou Field Office, which has jurisdiction over services in the provinces of Anhui, Fujian, Guangdong, Guangxi, Guizhou, Hainan, Henan, Hubei, Jiangsu, Jiangxi, Ningxia, Qinghai, Shandong, Shanxi, Sichuan, Sinkiang (Xinjiang), Tibet (Xizang), Yunnan, and Zhejiang.

More information is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=44248875d714d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=
1ac900c262197210VgnVCM100000082ca60aRCRD
.

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8. Firm In The News

Three CDMA attorneys were featured speakers at the AILA Annual Conference in San Francisco from June 26-29, 2013, which had over 4,000 participants. Cyrus Mehta was a speaker on a panel entitled,  EB-1 in the Age of Kazarian, David Isaacson was a speaker on a panel entitled, NOIDs (Notices of Intent to Deny) and RFEs (Requests for Evidence) in Family Cases, and Myriam Jaidi was on a panel entitled, Advanced Issues in Naturalization.

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June 2013 Immigration Update

Headlines:

1. Senate Committee Approves Comprehensive Immigration Reform BillOn May 21, 2013, the Senate Judiciary Committee approved an amended S. 744, the “Border Security, Economic Opportunity and Immigration Modernization Act of 2013,” by a bipartisan vote of 13-5. The bill now goes to the Senate floor.

2. Signaling Flexibility Within Limits, USCIS Releases Final Version of EB-5 Policy Memo -USCIS has released the final version of a long-awaited memorandum on EB-5 adjudications policy that went through four iterations beginning in November 2011.

3. CBP Releases Travel Tips, Improvements in Arrival Process for International Travelers -The agency released its “Top 10 Travel Tips.”

4. Federal Judge Enjoins Arizona Sheriff’s Office From Immigration Enforcement, Racial Profiling – federal judge ruled that the Maricopa County Sheriff’s Office engaged in impermissible racial profiling and enforcement of federal immigration law.

5. USCIS Issues Reminder About New I-9 Version, Releases Q&A’s on Monitoring and Compliance – As of May 7, 2013, employers must use the latest version of the I-9 employment eligibility verification form for new hires.

6. DHS Orders Verification of Student Visas in Wake of Boston Bombings – Border agents are to use flight manifest information to verify student visa status, and check any for which that information is not available against a DHS database.

7. Employment-Based Third Preference Visa Numbers Advance Significantly – The employment-based third preference category cut-off date for most countries advanced significantly for the second month in a row, but this rapid rate is not expected to continue.

8. USCIS Seeks New Private-Sector Experts for Entrepreneur Initiative – USCIS seeks experts in performing arts, health care, and information technology.

9.  DHS Changes US-VISIT Name – The US-VISIT program is now called the Office of Biometric Identity Management (OBIM).

10. ABIL Global: Applying to Naturalize as a British Citizen – Are You of Good Character? – The United Kingdom’s Home Office announced changes to the way it assesses criminal convictions, affecting how it will assess the “good character” requirement for naturalization applications.

11. Firm In The News

Details:

1. Senate Committee Approves Comprehensive Immigration Reform Bill

On May 21, 2013, the Senate Judiciary Committee approved an amended S. 744, the “Border Security, Economic Opportunity and Immigration Modernization Act of 2013,” by a bipartisan vote of 13-5. A full Senate vote is likely in June.

The comprehensive immigration reform legislation was developed by a “Gang of Eight” bipartisan group of senators and introduced on April 17. The Gang of Eight includes Sens. Marco Rubio (R-Fla.); John McCain (R-Ariz.); Lindsey Graham (R-SC); Jeff Flake (R-Ariz.); Chuck Schumer (D-NY); Robert Menendez (D-NJ); Michael Bennet (D-Colo.); and Richard Durbin (D-Ill.). Numerous amendments were proposed during committee markups, and some were accepted.

Among other things, the bill would offer a pathway to legal permanent residence through “registered provisional immigrant status” for 10 years for an estimated 11 million undocumented persons who arrived in the United States before December 31, 2011; introduce a new visa for lower-skilled, nonagricultural foreign workers; and reduce the backlogs in the employment and family preferences. It also would create a startup visa for entrepreneurs. It would include an increase in visas for both high- and low-skilled workers. The limit on H-1B workers would increase from 65,000 to 110,000 annually, although companies with at least 15 percent foreign workers would have to meet certain conditions.

A move to give same-sex spouses equal rights under immigration law failed.

Kenneth Palinkas, president of a union representing 12,000 U.S. Citizenship and Immigration Services (USCIS) immigration adjudications officers and staff, issued a statement on May 20, 2013, opposing the legislation. Noting that his union, the National Citizenship and Immigration Services Council, was not consulted when the “Gang of Eight” crafted the legislation, he charged that S. 744 “will damage public safety and national security and should be opposed by lawmakers.” Among other things, he said USCIS has been turned into an “approval machine” that “serves illegal aliens and the attorneys which represent them,” and blamed an “onslaught of refugees” for “the strain put on our Social Security system” that is depleted “as soon as their feet touch U.S. soil.” The National Immigration and Customs Enforcement Council (NICEC), a union for ICE officers, blasted the legislation in a letter to Congress signed by Mr. Palinkas also.

Department of Homeland Security (DHS) officials countered Mr. Palinkas’ statement, stating that many safeguards were added in recent years, such as an anti-fraud unit created in 2010, an increase in anti-fraud officers, scrutiny of employee decisions, a focus on security threats, and expansion of requirements for biometric screening. Commenting on one of the programs Mr. Palinkas criticized, deferred action for childhood arrivals, the New York Times quoted Peter Boogard, a DHS spokesperson, as noting that “[r]everting back to a system that treats violent criminals the same as children brought to this country through no fault of their own would only undermine the integrity of the immigration system and force law enforcement agencies to divert limited resources from focusing on those who pose real threats to their communities.” A New York Times editorial on May 21, 2013, called the letter to Congress “a screed, a grab bag of misdirection, scary talk and lies.” The editorial concluded, “The country is better served by the saner, more responsible law-enforcement officials, like the sheriffs, police chiefs and attorneys general who have lined up behind the bill, saying the current system undermines law enforcement by forcing the undocumented to live in anonymity and fear.”  For a further rebuttal of Mr. PalinkasХ statement, see ТAn Immigration AttorneyХs Response To Statement Of USCIS Union President Opposing Senate Immigration Bill, S. 744,У http://blog.cyrusmehta.com/2013/05/response-to-request-for-evidence.html.

Among other reactions, immigration activists in the Senate committee room chanted, “Yes, we can!” when the bill passed. A nonprofit association for the IT industry, CompTIA, also applauded the compromise bill. CompTIA released a statement noting that “[m]any of our membership are small and medium-sized technology firms that benefit from a strong pipeline of talent throughout the industry. Й [W]e were pleased to see included in the legislation language akin to the INVEST and STEM visas. Allowing STEM advanced degree holders to remain in the U.S. with a green card gives [tech businesses] an opportunity to recruit talent that they might not otherwise have access to. Allowing foreign entrepreneurs willing to stay and invest in our country also makes sense, as more than a quarter of all technology and engineering businesses launched in the U.S. between 1995 and 2005 had an immigrant founder.”

The text of the bill as introduced is available at
http://thomas.loc.gov/cgi-bin/query/z?c113:S.744:
. The list of amendments and their outcome in the markups is available at http://www.judiciary.senate.gov/legislation/immigration/amendments.cfm. The NICEC letter is available at
http://www.documentcloud.org/documents/698783-law-enforcement-letter-on-
immigration-bill.html
.

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2. Signaling Flexibility Within Limits, USCIS Releases Final Version of EB-5 Policy Memo

U.S. Citizenship and Immigration Services (USCIS) has released the final version of a long-awaited memorandum on EB-5 adjudications policy that went through four iterations beginning in November 2011.

The memo begins by reviewing the purpose and structure of the EB-5 immigrant investor program and reviews terminology and definitions, noting that the program’s purpose is “to promote the immigration of people who can help create jobs for U.S. workers through their investment of capital in the U.S. economy.”

Regarding the “preponderance of the evidence” standard, the memo notes that adjudication of EB-5 petitions and applications must establish each element by showing that what is claimed is “more likely so than not so.” This is a lower standard of proof than the “clear and convincing” or “beyond a reasonable doubt” standards. “The petitioner or applicant does not need to remove all doubt from our adjudication,” the memo states. Even if an adjudicator has some doubt, if the petitioner or applicant submits “relevant, probative, and credible evidence” that leads to the conclusion that the claim is more likely than not, or probably true, the petitioner or applicant has satisfied the standard of proof.

The memo allows a degree of flexibility in certain areas, such as “to account for the realities and unpredictability of starting a business venture,” although it cautions that this is not an “open-ended allowance.” The memo notes, for example, that the EB-5 program allows an immigrant investor to become a lawful permanent resident, without conditions, if he or she has established a new commercial enterprise, substantially met the capital requirement, and can be expected to create within a reasonable time the required number of jobs. All of the goals of capital investment and job creation need not have been fully realized before the conditions on the immigrant investor’s status have been removed. Rather, the memo states, the regulations require the submission of documentary evidence that establishes that it is more likely than not that the investor is in “substantial” compliance with the capital requirements and that the jobs will be created “within a reasonable time.”

USCIS has some latitude in interpreting what constitutes “within a reasonable time,” the memo notes, adding that the regulations require that the business plan submitted with the Form I-526, Immigrant Petition by Alien Entrepreneur, establish a likelihood of job creation “within the next two years.” Because the law contemplates two years as the baseline expected period in which job creation will take place, the memo explains, jobs that will be created within a year of the two-year anniversary of the immigrant’s admission as a conditional permanent resident or adjustment to conditional permanent resident status may generally be considered to be created within a reasonable period of time. Jobs projected to be created beyond that time horizon “usually will not be considered to be created within a reasonable time, unless extreme circumstances, such as force majeure, are presented,” the memo warns.

Following the theme of flexibility with limits, the memo acknowledges that business strategies “constantly evolve.” Therefore, the Form I-924, Application for Regional Center, provides a list of acceptable amendments, including “changes to organizational structure or administration, capital investment projects (including changes in the economic analysis and underlying business plan used to estimate job creation for previously approved investment opportunities), and an affiliated commercial enterprise’s organizational structure, capital investment instruments or offering memoranda.” The memo notes, however, that such formal amendments to the regional center designation are not required when a regional center changes its industries of focus, geographic boundaries, business plans, or economic methodologies, unless the regional center elects to pursue an amendment because it seeks certainty in advance of adjudication.

The memo also notes that unless there is reason to believe that a prior adjudication involved an objective mistake of fact or law, USCIS should not reexamine determinations made earlier in the EB-5 process. Absent a material change in facts, fraud, or willful misrepresentation, the memo states, USCIS should not re-adjudicate prior USCIS determinations that are subjective, such as whether the business plan is comprehensive and credible or whether an economic methodology estimating job creation is reasonable.

Other topics the memo discusses include targeted employment areas; new commercial enterprises; purchases of existing businesses that are restructured or reorganized; expansion of existing businesses; pooled investments in non-regional center cases; evidence of the establishment of, or investment in, a new commercial enterprise; job creation; qualifying employees; the sequence of individual investor filings; business plans; and the impact of “material changes” to a project.

The 27-page memo is available at
http://www.uscis.gov/USCIS/Laws/Memoranda/2013/May/EB-5%20Adjudications%20PM%20(Approved%20as%20final%205-30-13).pdf.

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3. CBP Releases Travel Tips, Improvements in Arrival Process for International Travelers

U.S. Customs and Border Protection (CBP) announced on May 22, 2013, that it is easing the international arrival process with new technology and procedures, including automating the I-94 Arrival/Departure Record and expanding self-service kiosks.

CBP said that additional steps travelers can take to smooth their arrival process include familiarizing themselves with U.S. rules and regulations before departing. The agency released its “Top 10 Travel Tips” (edited):

CBP also announced the opening of a seasonal border station at Ely, Minnesota, from May 25 until September 7, 2013, to help with the busy summer tourist season.

The CBP announcement including the travel tips is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/05222013.xml. The announcement about the seasonal border station is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/local/05212013_4.xml. A FAQ on the I-94 automation is available at
http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/travel/i94_factsheet.
ctt/i94_factsheet.pdf
.

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4. Federal Judge Enjoins Arizona Sheriff’s Office From Immigration Enforcement, Racial Profiling

In Melendres v. Arpaio, G. Murray Snow, a federal judge for the District of Arizona, ruled on May 24, 2013, that the Maricopa County Sheriff’s Office (MCSO), under Sheriff Joseph Arpaio, engaged in impermissible racial profiling and enforcement of federal immigration law by singling out Latino day laborers and others.

Patrols by MCSO included using traffic stops as a pretext to detect occupants of vehicles who may be in the United States without authorization. Among the issues in the lawsuit were whether the MCSO was permitted under the Fourth Amendment of the U.S. Constitution to question, investigate, and/or detain Latino occupants of vehicles it suspects of being in the United States without authorization when it has no basis to bring state charges against such persons, and whether the MCSO uses race as a factor in forming suspicion or probable cause. The court noted that MCSO lost authority to enforce the civil administrative aspects of federal immigration law when ICE cancelled that authority under its “287(g) program,” which had delegated authority to enforce federal immigration law to a maximum of 160 MCSO deputies under Immigration and Nationality Act ¤ 287(g).

The court ruled that the MCSO is permanently enjoined from detaining Latino occupants of vehicles in Maricopa County based only on a “reasonable belief,” without more, that they are in the United States without authorization. The MCSO is further permanently enjoined from using race or Latino ancestry as a factor in determining whether to stop any vehicle in Maricopa County with a Latino occupant, and from enforcing federal immigration law.

The court noted that the MCSO “continues to engage in law enforcement efforts against unauthorized aliens, and continues to aggressively assert its authority to do so.” In doing so, the court said, the MCSO erroneously trained its patrol deputies that they had authority to continue enforcing federal immigration law. “To the extent that MCSO implemented faulty instruction from ICE through the racially biased policies and practices governing its enforcement operations, its own implementation of those operations was also significantly flawed by its failure to observe normal standards of police conduct,” the court noted.

The 142-page decision is available at
http://kpbs.media.clients.ellingtoncms.com/news/documents/2013/05/24/melendres
_v_arpaio.pdf
.

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5. USCIS Issues Reminder About New I-9 Version, Releases Q&A’s on Monitoring and Compliance

U.S. Citizenship and Immigration Services (USCIS) issued a reminder that as of May 7, 2013, employers must use the latest version of the I-9 employment eligibility verification form for new hires. The new form has a revision date of “03/08/13 N” in the lower left corner of the first instructions page. It expires on March 31, 2016.

Q&A’s on the E-Verify monitoring and compliance functions are available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f61417
6543f6d1a/?vgnextoid=e05971eb810e9310VgnVCM100000082ca60aR
CRD&vgnextchannel=51e6fb41c8596210VgnVCM100000b92ca60aRCRD
.

A USCIS I-9 blog explaining details about the new form is available at
http://blog.uscis.gov/2013/05/employers-have-you-made-switch-to-new.html. The new form is available at http://www.uscis.gov/files/form/i-9.pdf.

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6. DHS Orders Verification of Student Visas in Wake of Boston Bombings

The Department of Homeland Security reportedly has ordered U.S. border agents to verify the validity of student visas for every international student arriving in the United States, effective immediately. Border agents are to use flight manifest information to verify student visa status, and check any for which that information is not available against a DHS database, according to the Associated Press, which obtained a copy of an internal memo circulated by David J. Murphy, of U.S. Customs and Border Protection, on May 3, 2013.

The order follows news that one of the students accused of hiding evidence after the April 15 Boston Marathon bombings, Azamat Tazhayakov, had returned to the United States in January without a valid visa. Reportedly, the border agent at the airport in New York where Mr. Tazhayakov entered the United States on January 20 did not have access to the Student and Exchange Visitor Information System (SEVIS) and didn’t send Mr. Tazhayakov to secondary inspection where SEVIS information would have been available. All border agents will now be able to access SEVIS. One of the bombers, Tamarlan Tsarnaev, was a U.S. permanent resident and the other, Dzokhar Tsarnaev, was a U.S. citizen. Tamarlan is dead and Dzokhar is in custody.

Delays are expected at ports of entry for international students as a result of the new order.

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7. Employment-Based Third Preference Visa Numbers Advance Significantly

The employment-based third preference category cut-off date for most countries advanced significantly for the second month in a row, as reflected in the June 2013 Visa Bulletin.

The Department of State’s Visa Office said this recent rate of movement is not expected to continue in the future. Rapid forward movement of cut-off dates is often followed by a dramatic increase in demand for numbers within three to six months, the Visa Bulletin explains. Once such demand begins to materialize, the cut-off date movement will begin to slow or will even stop for a period of time.

For June, the employment-based third preference cut-off date for China is September 1, 2008; for India, January 8, 2003; for Mexico, September 1, 2008; and for Philippines, September 22, 2006. For all other chargeability areas, the date is September 1, 2008. The dates for the “Other Workers” categories in June are the same, except for China-mainland born, which is October 22, 2003.

In May, the corresponding cut-off dates were December 1, 2007 (China, Mexico, and All Chargeability Areas Except Those Listed); December 22, 2002 (India); and September 15, 2006 (Philippines).

For June, the employment-based first preference is Current. Second preference is also Current except for China-mainland born, which is July 15, 2008; and India, which is September 1, 2004.

The June 2013 Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5953.html.

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8. USCIS Seeks New Private-Sector Experts for Entrepreneur Initiative

For its “Entrepreneurs in Residence” initiative, U.S. Citizenship and Immigration Services (USCIS) is now seeking new private sector experts, using the Department of Homeland Security’s Loaned Executive Program, in the areas of performing arts, health care, and information technology. USCIS said the introduction of expert views in these areas will help the agency gain additional insights and strengthen its policies and practices in areas critical to economic growth.

USCIS has also enhanced its online resource center for entrepreneurs, Entrepreneur Pathways. Over the past year, there have been nearly 30,000 visits to the site, USCIS reported. The site provides entrepreneurs seeking to start a business in the United States a way to navigate the immigration process.

USCIS said three aims are key to the initiative: “producing clear public materials to help entrepreneurs understand relevant visa categories; equipping USCIS staff with the right tools to adjudicate cases in today’s complex business environment; and streamlining USCIS policies to better reflect the realities faced by foreign entrepreneurs and startup businesses.”

For more information on opportunities for private sector experts, go to http://www.dhs.gov/loaned-executive-program. The USCIS announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6
d1a/?vgnextoid=2b6be424ac48e310VgnVCM100000082ca60aRCRD&vgnext
channel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD
.

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9. DHS Changes US-VISIT Name

The US-VISIT (United States Visitor and Immigration Status Indicator Technology) program is now called the Office of Biometric Identity Management (OBIM). The Department of Homeland Security (DHS) explained that OBIM provides biometric identification services that help federal, state, and local government decision-makers accurately identify people and determine whether they pose a risk to the United States. OBIM supplies the technology for collecting and storing biometric data, provides analysis, updates its watchlist, and ensures data integrity.

DHS created OBIM in March 2013. More information is available at https://www.dhs.gov/obim.

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10. ABIL Global: Applying to Naturalize as a British Citizen – Are You of Good Character?

Those applying to naturalize as British citizens need to be aware that criminal convictions and non-custodial offences can be taken into account when their applications are assessed. On December 13, 2012, the Home Office announced changes to the way it assesses criminal convictions, affecting how it will assess the “good character” requirement for naturalization applications. Criminal convictions will no longer be considered “spent” but instead will be evaluated according to a “sentence-based threshold.”

Where an individual has been convicted of an offense, the length of time he or she must wait before applying to naturalize as a British citizen is now dictated under the “sentence-based threshold” approach, as follows:

  • A sentence of 4 years or more of imprisonment: the application will be refused, regardless of when the conviction occurred
  • A sentence between 12 months and 4 years of imprisonment: the application will be refused unless 15 years have passed since the end of the sentence
  • A sentence of up to 12 months of imprisonment in the last 7 years: the application will be refused unless 7 years have passed since the end of the sentence
  • A non-custodial offense: the application will be refused if the conviction occurred in the last 3 years

The majority of people affected by this change likely will fall under the non-custodial offense category.

Most commonly, unpaid fines and notices that have been referred to a court due to non-payment, where the court orders the fine to be paid, can be treated as a non-custodial offense. Similarly, where an individual has been issued a police caution (warning), this too can be assessed against the non-custodial sentencing threshold.

These changes make it mandatory for individuals to declare any offenses or convictions ever received either in the United Kingdom or abroad. Where an offense occurred abroad, it will be considered in line with the equivalent UK offense and the relevant sentencing threshold applied.

If you are concerned about a future application to naturalize as a British citizen, speak to your ABIL Global legal representative.

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11. Firm In The News

Cyrus Mehta spoke at the Federal Bar Association’s Immigration Seminar held on May 17-18, 2013, in Memphis, Tennessee, on “CSPA & Child Citizenship Act of 2000.”

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SENATE COMMITTEE BEGINS MARKUP OF COMPREHENSIVE IMMIGRATION REFORM BILL

On May 9 and 14, 2013, the Senate Judiciary Committee began marking up S. 744, the "Border Security, Economic Opportunity and Immigration Modernization Act of 2013," which is comprehensive immigration reform legislation developed by the "Gang of Eight" bipartisan group of senators and introduced on April 17. The Gang of Eight includes Sens. Marco Rubio (R-Fla.); John McCain (R-Ariz.); Lindsey Graham (R-SC); Jeff Flake (R-Ariz.); Chuck Schumer (D-NY); Robert Menendez (D-NJ); Michael Bennet (D-Colo.); and Richard Durbin (D-Ill.)

Among other things, the bill would offer a pathway to legalization for an estimated 11 million undocumented persons, introduce a new W visa for lower-skilled immigrants, and clear up the backlogs in the employment and family preferences. It also would create a startup visa for entrepreneurs. Future measures to be considered in the markup sessions include an increase in visas for both high- and low-skilled workers.

The May 9 markup of the 844-page bill included a 7_-hour hearing during which the committee considered more than 32 proposed changes, mainly related to border security. The committee rejected such proposals as building 700 miles of double-layer fencing along the southern border. Twenty-one amendments were adopted; eight of the successful amendments were by Republicans and 13 by Democrats. Among other things, the adopted amendments require that the U.S. government apprehend 90 percent of those attempting to cross the southwest border without authorization. Some Republican senators wanted to tie border control measures to allowing undocumented persons to attain legal status. However, a related amendment by Sen. Charles Grassley (R-Iowa) was defeated.

Day 2 of the markup on May 14 focused on temporary visas. The senators approved 15 of the 29 amendments considered. Among other things, they adopted an amendment to make nationals of countries benefiting from the African Growth and Opportunity Act and the Caribbean Basin Economic Recovery Act eligible for E nonimmigrant visas, and rejected an amendment to limit the number of legal immigrants to 33 million over 10 years. Amendments were adopted to require a pilot program to conduct interviews for certain nonimmigrant visa applicants using secure remote conferencing technology, and to increase the labor certification fee from $500 to $1,000 and use the money to fund STEM (science, technology, engineering, and mathematics) education and training in the United States. The committee also passed an amendment to require that data from the Student and Exchange Visitor Information System be transmitted to U.S. Customs and Border Protection databases used by officers at ports of entry. An amendment to increase the H-1B visa cap to 325,000 after fiscal year 2013 was defeated.

A primary concern is how the bill would deal with the shortage of H-1B visa numbers. For FY 2014, which begins on October 1, 2013, the H-1B cap was reached on April 5, 2013. S. 744 would increase the H-1B cap, but this increase would be accompanied by changes to the H-1B and L visa programs that may make it more difficult to obtain H-1B and L visas quickly. For example, in exchange for an increase in H-1B visas to 110,000 with further adjustments using a market-based formula, the bill would significantly restrict access to the H-1B visa for all employers, as well as L-1 visas for some employers. The bill also would increase the period within which a complaint may be brought against an H-1B employer, from 12 to 24 months.

Subsequent markup dates are scheduled for May 16 and 20, and additional dates will be added as needed. Committee Chairman Patrick Leahy (D-Vt.) said that up to 300 amendments are expected. He said he hoped that debating the amendments would not become a delay tactic. The process is expected to take weeks, and Sen. Leahy said he wants to send the bill to the full Senate in June.

The New York Times published an editorial on April 21, 2013, arguing that although the bill needs some improvements, it would make the United States more hospitable to skilled immigrants while toughening rules to prevent abuse of temporary work visas.

The first amendment to the bill was the "Sponsors Amendment," http://www.judiciary.senate.gov/legislation/MDM13313.pdf. A document showing changes to the bill as introduced is available at
http://www.judiciary.senate.gov/legislation/EAS13500toMDM13313redline.pdf
. The original text of the bill is available at
http://www.judiciary.senate.gov/legislation/immigration/EAS13500.pdf. A live webcast of the May 9 markup is available at
http://www.judiciary.senate.gov/hearings/hearing.cfm?id=fd14634f4ddf1ce4be238de7c9cb97c0. The New York Times editorial is available at
http://www.nytimes.com/2013/04/22/opinion/visa-reforms-for-skilled-workers.html?_r=0. The list of amendments and their outcome in the markups is available at
http://www.judiciary.senate.gov/.

May 2013 Immigration Update

HEADLINES

1. DOL, DHS Publish Interim Final Rule on H-2B Prevailing
Wage Methodology; DOL, USCIS Resume Processing
 
– The rule revises the prevailing wage methodology used by the DOL to calculate certain prevailing wages paid to H-2B workers and U.S. workers recruited in connection with an H-2B Application for Temporary Employment Certification.

2. CBP Rolling Out Automation of I-94 Arrival/Departure Records – The change was implemented at air and sea ports on April 30 at Charlotte-Douglas International Airport, Orlando International Airport, Las Vegas Airport, Chicago O’Hare, Miami International Airport, and Houston Bush Intercontinental Airport. It will be rolled out across the country through May 21.

3. SSA Adds Admission Stamp in Unexpired Foreign Passport
To List of Primary Evidence of Identity, Updates Policy
on New Types of Nonimmigrant Evidence
-The Social Security Administration has updated its Program Operations Manual System, adding “admission stamp in unexpired foreign passport” to its list of acceptable primary evidence of identity.

4. CBP To Launch New Arrival/Departure Record Process for Foreign Visitors -Under the new process, CBP will no longer require international nonimmigrant visitors to fill out a paper Form I-94 Arrival/Departure Record upon arrival to the U.S. by air or sea.

5. Temporary Protected Status Extended for Hondurans, Nicaraguans – DHS has extended TPS for eligible nationals of Honduras and Nicaragua for an additional 18 months, beginning July 6, 2013, and ending January 5, 2015. Current Honduran and Nicaraguan beneficiaries seeking to extend their TPS status must re-register by June 3, 2013.

6. State Dept. Introduces Visa Status Check Online – Users can check their U.S. visa application status at the Consular Electronic Application Center (CEAC) on the site by entering the type and case number.

7. ABIL Global (www.abil.com): Peru – Amendments have been made recently to Peruvian immigration rules.

8. Firm In The News

Details:

1. DOL, DHS Publish Interim Final Rule on H-2B Prevailing Wage Methodology; DOL, USCIS Resume Processing

On April 24, 2013, the Departments of Labor (DOL) and Homeland Security published a joint interim final rule on wage methodology for the temporary non-agricultural employment H-2B program. The rule revises the prevailing wage methodology used by the DOL to calculate certain prevailing wages paid to H-2B workers and U.S. workers recruited in connection with an H-2B Application for Temporary Employment Certification.

The interim final rule was published in response to a court order issued by the U.S. District Court for the Eastern District of Pennsylvania on March 21, 2013, in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis, 09-cv-00240 (E.D. Pa). The court order vacated a portion of the 2008 wage methodology rule dealing with the way the DOL determines the prevailing wage when relying on the Bureau of Labor Statistics’ Occupational Employment Statistics (OES) survey, and provided the Department of Labor with 30 days to come into compliance. On Aprill 1, 2013, the US Court of Appeals for the 11th Circuit  agreed that the DOL lacked the H-2B rulemaking authority. Bayou Lawn & Landscape Servs. et al. v Secretary of Labor, F.3d, 2013 WL 1286129, No. 12-12462 (11th Cir. Apr. 1, 2013).  As a result, the DOL has proposed this new rule along with the Department of Homeland Security, consistent with the ruling in Bayou Lawn & Landscape Servs. et al stating that “DHS was given overall responsibility, including rulemaking authority, for the H-2B program.  DOL was designated a consultant.  It cannot bootstrap that supporting role into a co-equal one.”

On April 24, 2013, the effective date of the interim final rule, the DOL also resumed processing both pending H-2B prevailing wage requests and H-2B applications for temporary labor certification based on the OES wage survey data, in accordance with standards set in the interim final rule.

USCIS also has resumed processing of all Form I-129 (Petition for Nonimmigrant Worker) H-2B petitions for temporary nonagricultural workers. On March 22, 2013, USCIS temporarily
suspended adjudication of most I-129 H-2B petitions while the government considered appropriate action in response to the court order.

The DOL released frequently asked questions (FAQs) to assist filers in complying with the requirements of the interim final rule. The FAQs address the applicability of the new prevailing wage methodology, employer wage obligations, requests for review, and processing pending H-2B prevailing wage requests and H-2B applications for temporary labor certification. The FAQs were updated on April 25, 2013, and are available at http://www.foreignlaborcert.doleta.gov/pdf/faq_final_rule_april_2013.pdf.

The DOL/DHS interim final rule is available at
http://www.gpo.gov/fdsys/pkg/FR-2013-04-24/pdf/2013-09723.pdf. The DOL’s announcement is available at
http://www.foreignlaborcert.doleta.gov/. USCIS’s related announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=4cf5b6f39b14e310VgnVCM100000082ca60aRCRD&vgnextchannel=
e7801c2c9be44210VgnVCM100000082ca60aRCRD
. The decision in Comite de Apoyo a los Trabajadores Agricolas et al v. Solis is available at http://www.oalj.dol.gov/PUBLIC/INA/DECISIONS/COURT_DECISIONS/
09_00240_Comite_de_Apoyo_ED_Pa_03_21_2013.pdf
.

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2. CBP Rolling Out Automation of I-94 Arrival/Departure Records

U.S. Customs and Border Protection (CBP) announced on April 26, 2013, that it has automated the Form I-94, Arrival/Departure Record. The I-94 provides international visitors evidence that they have been lawfully admitted to the United States, which is necessary to verify registration, immigration status, and employment authorization. Affected visitors will no longer need to fill out a paper form when arriving in the U.S. by air or sea. CBP will now generate records of admission using traveler information already transmitted electronically.

The change was implemented at air and sea ports on April 30 at Charlotte-Douglas International Airport, Orlando International Airport, Las Vegas Airport, Chicago O’Hare, Miami International Airport, and Houston Bush Intercontinental Airport. It will be rolled out across the country through May 21.

Travelers wanting a hard copy or other evidence of admission may access that information online at http://www.cbp.gov/I94 if they did not receive a hard copy attached to their passport. From there, individuals can print a copy of the I-94 based on electronically submitted data, including the I-94 number from the form, to provide as necessary to benefit providers or as evidence of lawful admission.
The announcement is available at
http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/04262013_4.xml.

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3.  SSA Adds Admission Stamp in Unexpired Foreign Passport To List of Primary Evidence of Identity, Updates Policy on New Types of Nonimmigrant Evidence

The Social Security Administration has updated its Program Operations Manual System (POMS), effective April 30, 2013, adding “admission stamp in unexpired foreign passport” to its list of acceptable primary evidence of identity. The updated SSA information, “List of Documents in Priority of Acceptability for Use as Evidence of Identity,” says that this is considered a separate document from an unexpired passport.

The updated SSA information in POMS refers to “Policy for Number of Documents Required for an SSN Card,” which explains:

  • An I-551 stamp (Temporary Lawful Permanent Resident stamp) or a U.S. immigration stamp in the applicant’s foreign passport and the foreign passport are two separate documents.
  • Likewise, an Arrival Departure Record (Form I-94) stapled in a foreign passport and the foreign passport are two separate documents.
  • A machine-readable immigrant visa (MRIV) issued by the U.S. Department of State and placed in the foreign passport and the foreign passport are two separate documents.
  • The Department of Homeland Security (DHS) admission stamp placed partially on the MRIV is a third document.
  • While you can use the immigration and admission stamp to establish identity and lawful alien status, you can use the foreign passport to establish age.

SSA has also posted policy information on new types of nonimmigrant evidence, including the admission stamp and recently introduced versions of the I-94 Arrival/Departure record, including U.S. Customs and Border Protection’s I-94 website printout and the Global Entry I-94, and has added a parole stamp placed in an unexpired foreign passport as acceptable evidence of parole status for a Social Security number (SSN).

SSA also updated the 10-day hold procedure for verifying evidence of status for an SSN using the Systematic Alien Verification for Entitlements (SAVE) program through the enumeration system (SSNAP). SSA said it is making these changes as a result of Department of Homeland Security (DHS) automation of the I-94 Arrival/Departure record and recent DHS information regarding the real-time verification of alien evidence. SSA has eliminated the 10-day hold policy for all DHS evidence except DHS Forms N-550/N-570 (Certificate of Naturalization) and N-560/N-561 (Certificate of Citizenship).

The updated information on admission stamps is included in RM 10210 TN 16 (effective date: 4/30/2013), and is available at https://secure.ssa.gov/apps10/public/reference.nsf/links/04162013014723PM.
The referenced document, RM 10210.020, is available at https://secure.ssa.gov/poms.nsf/lnx/0110210020#c3.
The new policy documents, also effective April 30, 2013, are available at
https://secure.ssa.gov/apps10/public/reference.nsf/links/04122013093257AM
and
https://secure.ssa.gov/apps10/public/reference.nsf/links/04112013010840PM. The 10-day hold update is available at
https://secure.ssa.gov/apps10/public/reference.nsf/links/04122013093259AM.

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4. CBP Launches New Arrival/Departure Record Process for Foreign Visitors

Under the new process, CBP is no longer requiring international nonimmigrant visitors to fill out a paper Form I-94 Arrival/Departure Record upon arrival to the U.S. by air or sea. The agency will gather travelers’ arrival/departure information automatically from their electronic travel records. CBP said it expects this automation to streamline the entry process for travelers, facilitate security, and reduce federal costs. CBP anticipates that the automated process will save the agency an estimated $15.5 million per year.

Because advance information is only transmitted for air and sea travelers, CBP will still issue a paper I-94 at land border ports of entry.

CBP will phase in the I-94 automation at air and sea ports of entry into May. Foreign visitors will continue to receive the paper I-94 until the automated process arrives at their port of entry. Following automation, if travelers need the information from their I-94 admission record to verify immigration status or employment authorization, the record number and other admission information will be available at CBP.gov/I94 .

With the new CBP process, a CBP officer will stamp the travel document of each arriving nonimmigrant traveler. The admission stamp will show the date of admission, class of admission, and the date until which the traveler is admitted. Travelers will also receive upon arrival a flier alerting them to go to CBP.gov/I94 for their admission record information.

Travelers will not need to do anything differently upon exiting the U.S. Those previously issued a paper I-94 will surrender it to the commercial carrier or to CBP upon departure. If a traveler did not receive a paper I-94, CBP will record the departure electronically via manifest information provided by the carrier or by CBP.

Implementation began on April 30 at five pilot ports of entry and will continue to the remaining ports of entry over a total of four weeks. For more information and for answers to frequently asked questions, a fact sheet/FAQ is available at
http://www.cbp.gov/linkhandler/cgov/newsroom/fact_sheets/
travel/i94_factsheet.ctt/i94_factsheet.pdf
.

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5.         Temporary Protected Status Extended for Hondurans, Nicaraguans

The Department of Homeland Security has extended temporary protected status (TPS) for eligible nationals of Honduras and Nicaragua for an additional 18 months, beginning July 6, 2013, and ending January 5, 2015.

Current Honduran and Nicaraguan beneficiaries seeking to extend their TPS status must re-register by June 3, 2013. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to register as soon as possible.

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Honduran and Nicaraguan TPS beneficiaries who request an EAD and meet the re-registration deadline will receive a new EAD with an expiration date of January 5, 2015. 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 Honduras EADs that have a July 5, 2013, expiration date for an additional six months. These existing EADs are now valid through January 5, 2014.

To re-register, current TPS beneficiaries must submit Form I-821, Application for Temporary Protected Status. TPS re-registrants must also submit Form I-765, Application for Employment Authorization, but no application fee is required if the re-registrant does not want an EAD. 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 years of age or older. All TPS re-registrants applying for an EAD must submit the I-765 application fee, or a fee waiver request.

TPS applicants may request that USCIS waive any fees by filing a Form I-912, Request for Fee Waiver, or by submitting a personal letter asking that these fees be waived. Failure to submit the required filing fees or a properly documented fee waiver request will result in rejection of the entire TPS application, USCIS said.

Additional information on TPS for Honduras and Nicaragua, including guidance on the application process and eligibility, is available online at
http://www.uscis.gov/tps. Further details on this extension of TPS for Honduras, including the application requirements and procedures, appeared in a Federal Register notice published on April 3, 2013, and available at http://www.gpo.gov/fdsys/pkg/FR-2013-04-03/pdf/2013-07673.pdf. The USCIS announcement for Honduras is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid
=382d8aea586bd310VgnVCM100000082ca60aRCRD&vgnextchannel=
68439c7755cb9010VgnVCM10000045f3d6a1RCRD
. The Federal Register notice for Nicaragua is available at
http://www.gpo.gov/fdsys/pkg/FR-2013-04-03/pdf/2013-07674.pdf. The USCIS announcement for Nicaragua is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=5d4e41f935a4d310VgnVCM100000082ca60aRCRD&vgnextchannel=
68439c7755cb9010VgnVCM10000045f3d6a1RCRD
.

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6. State Dept. Introduces Visa Status Check Online

The Department of State’s Bureau of Consular Affairs has launched “Visa Status Check” online. Users can check their U.S. visa application status at the Consular Electronic Application Center (CEAC) on the site by entering the type and case number. The service is available at https://ceac.state.gov/CEACStatTracker/Status.aspx?. The CEAC is available at
https://ceac.state.gov/CEAC/.

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7.  ABIL Global (www.abil.com): Peru

Amendments have been made recently to Peruvian immigration rules.

Changes do not often occur in Peruvian immigration law, but there have been some recent modifications to certain aspects of immigration proceedings and requirements by the Peruvian Immigration Administrative Authority concerning visa processes for foreign nationals.

Legislative Decree  No. 1130 has created a new immigration Peruvian authority based on the former authority known as “DIGEMIN” and now called “MIGRACIONES.” This legislative decree took effect December 7, 2012. The new government office, the National Superintendence of Migration (MIGRACIONES), is a technical and specialized entity within the Ministry of the Interior of Peru that has its own administrative, economic, and functional autonomy.

In addition, on December 23, 2012, Supreme Decree No. 003-2012-IN was published, which included the Text of Administrative Procedures of the Ministry of the Interior (TUPA), comprising procedures and related administrative services. Among them are those pertinent to MIGRACIONES, which is now the lead agency in domestic immigration policy in Peru. Among its different powers, however, there still exists the recently issued DIGEMIN TUPA. MIGRACIONES has not yet issued its own TUPA.

In general, MIGRACIONES has become more demanding and rigorous. Previously, there were only the discretionary judgment and criteria of DIGEMIN in some aspects. Now the legal basis has been incorporated into the recent DIGEMIN TUPA regarding such aspects. DIGEMIN TUPA contains the administrative rules to apply to immigration law in Peru.

Now there are more requirements for work visas and appointed worker visas related to performing labor activities in Peru for those who are either working in the country employed by local companies registered on their payroll as “dependent workers,” or as foreigners who provide services in Peru to some local companies as “consultants or advisors” on a regular basis and who hold a migratory status and visa regulated by law, maintaining their capacity as workers for foreign companies because they are not included on the payroll of Peruvian companies.

The most significant changes include:

  • Change of status (in-country processing) or obtaining of visa proceeding (with a consular step):

Resident – Worker (WRA)

– A foreign citizen who requires this type of visa must sign the Initiation “F-0004” form, in the case of “Change of Status” procedure (in-country processing), since he or she is in the country.

– At present, the F-0004 is obtained online either for in-country or obtaining of visa proceeding.

– No more than 15 working days should elapse between the date of approval of the employment contract for foreign nationals and the start date of filing the case before MIGRACIONES.

– Where the parties in an employment contract related to a foreign national have agreed to a probationary period, MIGRACIONES shall first grant a visa with temporary worker status only until the completion of this period. After that, the applicant applies for a “change of visa process” to get his or her WRA visa at MIGRACIONES.

– The power of attorney letter granted by the foreign citizen must be addressed to the National Superintendence of Migration-MIGRACIONES, not to DIGEMIN.

– A copy of the Registry of Taxpayers (RUC) of the local company employing the foreign national, which is obtained from SUNAT’s website (http://www.sunat.gob.pe/) using the key password “clave sol,” must be “Active” (Activo) and “Existing” (Habido), and the local company must have workers enrolled on its payroll.

– A certified copy of the validity of the power of attorney (Vigencia de Poder) of the representative of the contracting employer updated and recently issued by the Registry Office must show explicitly that this is a representative of the employer who has signed the employment contract on behalf of the local company, and has the authorization to hire staff.

– The foreign passport of the applicant must have a minimum validity of one year.

Appointed Worker (WD1)

– A foreign citizen who requires this type of visa must sign the Initiation “F-0004” form in the case of a change of status (in-country process), because he or she is in the country.

– At present, the F-0004 is obtained online either for in-country or obtaining of visa proceeding.

– In addition to the requirements within the scope of the letter of appointment to be granted to the appointed worker by the foreign company that will provide services to the local company, a letter that is addressed to the receiving company must state that both wages, as per diem, or any payment to the appointed worker, shall be paid by the foreign company. The age of the individual must also be indicated in this letter.

– A Certificate of Specialization in the work that the appointed worker will perform in the local company in Peru, should be issued by the foreign company or foreign study center, duly legalized by the Peruvian consulate abroad and endorsed by the Peruvian Ministry of Foreign relations or with an apostil abroad, as appropriate.

– – A copy of the Registry of Taxpayers (RUC) of the local company employing the foreign national, which is obtained from SUNAT’s website (http://www.sunat.gob.pe/) using the key password “clave sol,” must be “Active” (Activo) and “Existing” (Habido), and the local company must have workers enrolled on its payroll.

– A certified copy of the validity of the power of attorney (Vigencia de Poder) of the representative of the local company receiving the services, who has signed the service agreement and the letter of the beneficiary company (local company), should be recently updated and issued by the corresponding Registry Office.

– The applicant’s passport should be valid for at least six months.

The requirements above apply to both types of procedures, either “change of immigration status” or “obtainment of visa,” unless specific reference to only one of them is made.

Other requirements, depending on the type of procedure to be followed, remain mandatory.

In case of an extension or renewal of the permit for an appointed worker (WD1) beyond the additional 90 days initially granted, the INTERPOL International Exchange sheet should be attached to the file and submitted to MIGRACIONES for this purpose, provided that the extension or renewal requested is at least three months.

II.   Procedure for Extension of Residence Permit

Resident Worker

Three original recent payslips for the foreign worker must be presented to MIGRACIONES in addition to other documentation, demonstrating continued employment during the last year of stay in the country.

III.  Procedure of Extension of Authorization of Permanency:

Temporary Worker/Appointed Worker

The INTERPOL International Exchange Sheet should be presented if the requested extension is at least three months.

This must be presented to MIGRACIONES in addition to other required documents in the case of extension beyond the additional 90 days initially granting authorization to work for a local company under a dependent labor relationship as a subordinated worker (temporary worker), or as a consultant or advisor (appointed worker).

In addition, three original recent payslips of the foreign worker for a temporary worker visas must be filed.

Requirements in immigration proceedings for change of status and obtaining visa for immigrants, investors, among others, have also been amended.

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8.    Firm In The News

Cyrus Mehta was a Panelist on the topic “The Time is Now: How South Asians are Affected By Immigration Reform,” South Asian Summit 2013, Washington, DC, April 2013.

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April 2013 Immigration Update

Headlines

1.         H-1B Filing for FY 2014 Starts April 1; USCIS Will Begin Premium
Processing for H-1B Cap Cases on April 15
– Companies should file H-1B petitions now, and evaluate their anticipated hiring needs for H-1B professionals for the 12-month period beginning on October 1, 2013. USCIS will begin premium processing for H-1B cap cases on April 15.

2.         USCIS Releases New Two-Page I-9 Verification Form, Handbook for Employers – Changes to the I-9 include new fields, reformatting, and revised instructions to both employees and employers.

3.         No Wages Due If H-1B Employee Is Voluntarily Nonproductive, ALJ Finds – An arts school did not owe an H-1B nonimmigrant employee back pay for voluntarily nonproductive “work” time.

4.         Deferred Enforced Departure Extended for Liberians – USCIS announced that it is automatically extending EADs through September 30, 2013, for Liberian nationals covered under DED. The automatic EAD extension followed President Barack Obama’s decision to extend DED through September 30, 2014.

5.         Effects of Sequestration: CBP Releases Info on Effects on Border,
Traveler Programs; USCIS To Lose $151 Million
 – CBP warned that it anticipates “significant potential impacts to cross-border travel and trade,” which will increase as peak travel seasons occur.

6.         Witnesses Argue in Favor of Skilled Immigration at House Hearing – Judiciary Committee Chairman Bob Goodlatte (R-Va.) opened the hearing by noting, among other things, a study finding that each additional 100 immigrants with advanced STEM degrees is associated with an additional 262 jobs for U.S. natives.

7.         ABIL Global: Belgium – New sanctions and measures against employers of unauthorized workers have been implemented, as has a new legal framework for enhanced inspection coordination relating to the employment of foreign nationals. Also, the administrative fees for residence permits have increased.

8.         Firm In The News 

Details

1.         H-1B Filing for FY 2014 Starts April 1; USCIS Will Begin Premium Processing for H-1B Cap Cases on April 15

Cyrus D. Mehta & Associates, PLLC (CDMA) reminds clients that H-1B filing for fiscal year 2014 starts on April 1, 2013. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013.

Companies should file H-1B petitions now, and evaluate their anticipated hiring needs for H-1B professionals (specifically, those requiring initial H-1B visas) for the 12-month period beginning on October 1, 2013. That is the date on which new H-1B visas become available under the annual cap. Employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, so April 1, 2013, signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached. The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (masterХs or higher) from a U.S. university.

The H-1B cap for fiscal year 2013 was reached in June 2012. The pace of hiring this year means that the demand for new H-1B workers could result in the new cap being reached in early April. As in past years, some foreign nationals are not subject to the H-1B cap, including individuals who already have been counted toward the cap in a previous year and have not been outside the United States subsequently for one year or more. Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities are exempt from the H-1B cap. All other employers should be aware of the H-1B cap.

U.S. Citizenship and Immigration Services (USCIS) said it anticipates receiving more petitions than the H-1B cap between April 1 and April 5, 2013. If USCIS receives more petitions than it can accept, it will use a lottery system to randomly select the number of petitions filed during that period to reach the numerical limit. The agency will reject petitions that are subject to the cap but not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap. The lottery for the H-1B cap was last used in April 2008.

USCIS noted that filers of H-1B cap cases may continue to request premium processing concurrently. Due to “historic” premium processing levels, combined with the possibility that the H-1B cap will be met quickly, USCIS said it has temporarily adjusted its current premium processing practice. As noted above, to facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013, even if they are filed earlier.

USCIS’ announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?
vgnextoid=f537eff29cb6d310VgnVCM100000082ca60aRCRD&vgnextchannel=68439
c7755cb9010VgnVCM10000045f3d6a1RCRD
. A related announcement on premium processing for H-1B cap-subject petitions is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=7b63eff29cb6d310VgnVCM100000082ca60aRCRD&vgnextchannel=e7
801c2c9be44210VgnVCM100000082ca60aRCRD
.

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2.         USCIS Releases New Two-Page I-9 Verification Form, Handbook for Employers

U.S. Citizenship and Immigration Services (USCIS) has released a revised Employment Eligibility Verification Form (I-9), effective March 8, 2013. All employers must complete an I-9 for each employee hired in the United States.

Changes to the I-9 include new fields, reformatting, and revised instructions to both employees and employers. Optional fields have been added for employee e-mail addresses and telephone numbers, as well as foreign passport information if applicable.

Employers should have begun using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications. Employers may continue to use previously accepted revisions [(Rev.02/02/09)N and (Rev. 08/07/09)Y] until May 7, 2013. After May 7, 2013, employers must only use the I-9 version with the revision date of (Rev. 03/08/13)N. The revision date of the I-9 is printed on the lower left corner of the form.

USCIS noted that employers should not complete a new I-9 for current employees if a properly completed I-9 is already on file.

A Spanish version of the revised I-9 is available on the USCIS website for use in Puerto Rico only. Spanish-speaking employers and employees in the 50 states; Washington, DC; and other U.S. territories may use the Spanish version for reference but must complete the English version of the form.

USCIS said it is updating, and will release shortly, a new handbook for employers containing guidance for completing the I-9.

USCIS is holding numerous upcoming webinars on the I-9 form. For the full list, see
http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/
?vgnextoid=413628ac1dc0c210VgnVCM100000082ca60aRCRD&vgnextchannel=41
3628ac1dc0c210VgnVCM100000082ca60aRCRD
.

The revised form is available in English and Spanish. The Department of Homeland Security published a notice in the Federal Register about the revised I-9. The USCIS announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?
vgnextoid=bc6e41f935a4d310VgnVCM100000082ca60aRCRD&vgnextchannel=55b
2aca797e63110VgnVCM1000004718190aRCRD
. The Federal Register notice is available at http://www.gpo.gov/fdsys/pkg/FR-2013-03-08/pdf/2013-05327.pdf.

USCIS also released a new M274 Handbook for Employers. It has a revision date of 3-8-13 and is available at http://www.uscis.gov/files/form/m-274.pdf.

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3.         No Wages Due If H-1B Employee Is Voluntarily Nonproductive, ALJ Finds

The Department of Labor’s Office of Administrative Law Judges recently found that North Shore School for the Arts (NSSA) did not owe an H-1B nonimmigrant employee back pay for voluntarily nonproductive “work” time. NSSA had employed Natsuko Imai as a piano/music teacher for 20 hours per week at a wage rate of $40 per hour.

Among other things, an NSSA representative stated that Ms. Imai took some students into her own private studio rather than continuing to work with them as NSSA students, which was against NSSA policy. The representative also stated that Ms. Imai was uncooperative in working to get more students. The representative made suggestions for doing so that Ms. Imai rejected. Despite claims to the contrary, Ms. Imai was trying to get into graduate school and spent much of her time practicing piano rather than teaching or performing related outreach duties.

Administrative Law Judge (ALJ) Stephen M. Reilly noted that wages are to be paid for nonproductive time if the employee is “ready, willing, and able” to work and the nonproductive time resulted from a decision of the employer. He found Ms. Imai’s testimony “rife with evasiveness, equivocation and forgetfulness.” He said that her demeanor during testimony “raised questions regarding her truthfulness.” He also found her disregard of the law “troubling” because she admitted to working while on an F-1 student visa and also to working outside NSSA while she was in H-1B status, which are violations. She further admitted that she did not report income for tax purposes. She said she knew these actions were against the law when she did them. ALJ Reilly gave her testimony “little weight” because of these factors and her evasive answers. For example, the ALJ noted that she said that obtaining a doctoral degree was not her plan, but acknowledged that she had applied to doctoral programs and sought and obtained several recommendations for that purpose.

ALJ Reilly also noted that although Ms. Imai spent long hours at the school, her focus was on practicing the piano, not teaching or performing her job duties. He found that Ms. Imai did not make herself available to perform her job duties and thus was not ready, willing, and able to work. The ALJ did not hold the NSSA’s representative blameless either, stating that she was “blinded to reality.” ALJ Reilly found the employer responsible for back pay for work performed (74.5 hours plus interest, for a total of $2,980), but not for the hours in dispute during which Ms. Imai was not performing work.

The case is available at
http://www.oalj.dol.gov/Decisions/ALJ/LCA/2012/WAGE_and_HOUR_DIVISI_v_
NORTH_SHORE_SCHOOL_F_2012LCA00039_(JAN_18_2013)_102855_CADEC_SD.PDF
.

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4.         Deferred Enforced Departure Extended for Liberians

U.S. Citizenship and Immigration Services (USCIS) recently announced that it is automatically extending employment authorization documents (EADs) through September 30, 2013, for Liberian nationals covered under deferred enforced departure (DED). The automatic EAD extension followed a memorandum announcing President Barack Obama’s decision to extend DED through September 30, 2014, for qualified Liberians and those persons without nationality who last habitually resided in Liberia. USCIS said the six-month extension of existing EADs will permit eligible Liberians to continue working in the United States while they file their applications for new EADs that will cover the full 18 months of the DED extension.

The announcement is available at
http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/
?vgnextoid=0beebe0548f6d310VgnVCM100000082ca60aRCRD&vgnextchannel=6
8439c7755cb9010VgnVCM10000045f3d6a1RCRD
. A related Federal Register notice is available at
http://www.gpo.gov/fdsys/pkg/FR-2013-03-21/html/2013-06519.htm
. The Presidential Memorandum is available at
http://m.whitehouse.gov/the-press-office/2013/03/15/presidential-memorandum-deferred
-enforced-departure-liberians
.

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5.         Effects of Sequestration: CBP Releases Info on Effects on Border, Traveler Programs; USCIS To Lose $151 Million

U.S. Customs and Border Protection (CBP) has released information about the effects of “sequestration” (mandated federal budget cuts under the Budget Control Act of 2011) on traveler and border programs. CBP stands to lose $512 million in fiscal year (FY) 2013 funds, according to the Office of Management and Budget (OMB). CBP warned that it anticipates “significant potential impacts to cross-border travel and trade,” which will increase as peak travel seasons occur. The agency noted that, among other things, it will lose “up to several thousand” CBP officers at ports of entry in addition to undergoing “significant cuts” to operating budgets and programs.

CBP said that security will remain the highest priority. The agency noted that all trusted traveler and trader programs, including Global Entry, SENTRI, NEXUS, C-TPAT, and FAST, will be “maintained and emphasized.”

CBP said it anticipates the following effects, among others, at ports of entry:

  • Increased wait times for personal vehicles and pedestrians at land border ports of entry, with the potential of doubling of peak wait times up to several hours or more at the largest ports, leading to potential gridlock during peak travel seasons;
  • Increased wait times at major international airports of up to 50 percent or more, with peak wait times of up to 3-4 hours or more at some gateway airports;
  • Reduced flexibility to maintain or extend operating hours or respond to requests for new services.

CBP noted that the cuts are taking place against a backdrop of significant growth in international travel and trade. According to CBP, international air travel has increased by 12 percent over the past three years and is expected to increase an additional 5 percent this year. Also, land border passenger traffic is increasing on both the northern and southern borders.

CBP has launched a Web page to provide information and updates on the effects of sequestration on its operations, available at http://www.cbp.gov/xp/cgov/newsroom/advisories/info_seq_cbpops/.

Meanwhile, the Office of Management and Budget released a document showing FY 2013 cuts to all federal government branches and agencies resulting from sequestration. Among other things, it shows that U.S. Citizenship and Immigration Services, which is primarily funded from fee-based services, stands to lose $151 million. U.S. Immigration and Customs Enforcement also released several thousand lower-risk detainees in anticipation of budget cuts.

A list of the Department of Homeland Security’s cuts begin on page 27 of the OMB publication, “OMB Report to the Congress on the Joint Committee Sequestration for Fiscal Year 2013.” See page 7 of the OMB publication for a paragraph explaining what the numbers mean. The OMB publication is available at
http://www.whitehouse.gov/sites/default/files/omb/assets/legislative_reports/fy13
ombjcsequestrationreport.pdf
.

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6.         Witnesses Argue in Favor of Skilled Immigration at House Hearing

Skilled immigration was the topic of a hearing held on March 5, 2013, by the House of Representatives Subcommittee on Immigration and Border Security. Judiciary Committee Chairman Bob Goodlatte (R-Va.) opened the hearing. Witnesses included Bruce Morrison, Chairman, Morrison Public Affairs Group (testifying on behalf of IEEE-USA [a unit of the Institute of Electrical and Electronics Engineers, Inc.]); Dean Garfield, President and CEO, Information Technology Industry Council; Deepak Kamra, General Partner, Canaan Partner; and Benjamin Johnson, Executive Director, American Immigration Council.

Rep. Goodlatte noted, among other things, that foreign-born inventors have received 76 percent of patents awarded to top U.S. patent-producing universities in cutting-edge fields like semiconductor device manufacturing, information technology, digital communications, pharmaceuticals, and optics. He cited a study finding by the American Enterprise Institute and the Partnership for a New American Economy that each additional 100 immigrants with advanced STEM (science, technology, engineering, and mathematics) degrees is associated with an additional 262 jobs for U.S. natives. The study also found, he noted, that immigrants with advanced degrees pay over $22,000 per year in taxes on average but their families receive less than $2,300 in government benefits.

Rep. Goodlatte lamented that despite the “outstanding track record of immigrants in founding some of our most successful companies,” the United States only selects less than one percent of immigrants on the basis of entrepreneurial talents. By contrast, he noted, Australia, the United Kingdom, and Canada each select over 60 percent of immigrants on the basis of skills and education. He recommended an approach similar to a House bill that did not pass the Senate last year. That bill would have redirected approximately 50,000 green cards from the diversity visa lottery toward foreign students graduating from U.S. universities with advanced degrees in STEM fields.

He recommended that in the new Congress, all aspects of high-skilled immigration policy should be reviewed with an eye toward improving temporary visa programs for skilled workers, such as those on H-1B and L visas; improving the E-2 temporary visa program for entrepreneurs; offering green cards to aspiring entrepreneurs “that don’t demand that they themselves be rich but that instead rely on the judgment of the venture capitalists who have funded them”; reducing backlogs for second- and third-preference employment-based green cards; and seeking to help the United States retain more foreign graduates of U.S. universities.

Mr. Morrison noted that the Immigration Act of 1990 nearly tripled employment-based green cards from 54,000 to 140,000 per year, and set a permanent cap of 65,000 H-1B visas per year. He said this was to encourage employers hiring foreigners for permanent jobs to use legal permanent residence visas, putting them on a path toward citizenship. He argued in favor of providing more green cards for skilled workers and a more direct way for employers to sponsor new hires for green cards as soon as they are hired. He noted that 20 percent of IEEE-USA members are immigrants, and student chapters with a mix of native-born and foreign student members abound. He said there is a consensus among IEEE-USA membership that they do not want to be part of a system that uses temporary visas “to advantage or disadvantage some employees over others.” With green cards, he said, “you do not have to write endless rules regarding portability and prevailing wages. The job market sorts all this out.”

Mr. Garfield said the United States is creating technology jobs faster than we can fill them. He noted that other than a modest permanent change in 2004, the private sector has access to roughly the same number of H-1B visas as it did in 1990. He said the United States is likely to run out of the annual allotment of 65,000 H-1B visas “within weeks” of April 1, “leaving no new hiring options for FY 2014 and forcing businesses to move jobs elsewhere even when they may not want to.” Mr. Garfield said his organization recommends reform that helps to fill skilled job openings while accelerating new jobs and new knowledge-driven businesses; supplementing the U.S. workforce with skilled immigration reform; and using skilled immigration reform to maximize work in the United States that could be performed elsewhere.

Mr. Kamra argued in favor of a “StartUp Visa” category. He said the H-1B visa is not a workable solution for starting a company in the United States, since entrepreneurs need to devote themselves full-time to building a new company. He recommended including criteria such as requiring entrepreneur visa candidates to receive legitimate funding and to prove subsequent job creation or company growth. Among other things, he recommended that the required first round of funding for any StartUp Visa recipient not be too high, and that ongoing monitoring of the entrepreneur’s progress and milestones account for the high-risk nature of such companies.

Mr. Johnson noted that the talent we seek often comes to the United States not only through employment-based channels but also through family reunification, the admission of refugees and asylees, and even within the population of unauthorized workers. He suggested that the quest for talent is not an isolated enterprise but part of systematic immigration reform. He lamented the reductive “buzz words and myths” that fail to acknowledge the “nuanced and complex role immigration plays in American economic growth, business development, and global competitiveness” and pitting native-born workers against their foreign-born colleagues. He argued in favor of creating a “revamped and revitalized immigration system.”

Mr. Johnson recommended reforms that provide job portability, labor protections and economic opportunities for both workers and their families. He said the current system is inflexible and outdated, and argued in favor of a “nimble and efficient system” that responds in real time to the needs of the market by giving employers the ability to fill positions quickly with workers who are protected from exploitation.

The witness statements are available at http://judiciary.house.gov/hearings/113th/hear_03052013.html.

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

New sanctions and measures against employers of unauthorized workers have been implemented, as has a new legal framework for enhanced inspection coordination relating to the employment of foreign nationals. Also, the administrative fees for residence permits have increased.

New Sanctions/Measures

The Belgian Act, dated February 11, 2013, provides for sanctions and measures against employers of third-country nationals without authorization. The law implements European Directive 2009/52.

Under the new rules, in addition to already existing sanctions, an employer who employs third-country nationals staying in Belgium without authorization can be sanctioned financially (for example, back payment of remunerations, taxes, and social security contributions).

A potential employer of a third-country national also is subject to a threefold “information obligation.” The employer must: (1) verify before the start of employment whether the third-country national holds a valid residence permit or other authorization of stay; (2) keep available for inspection a copy or record of the residence permit or other authorization to stay; and (3) notify the authorities of the start and termination of employment under the applicable rules. Infringement of these rules, including document fraud of which the employer was aware, is considered a serious infringement under the Code on Labor and Social Security Criminal Law.

The Belgian Act also provides sanctions and, to some extent, potential liability with regard to a portion of wages for parties who work, directly or indirectly, as a contractor or subcontractor, with employers of unauthorized third-country nationals.

These new provisions took effect March 4, 2013.

Legal Framework for Enhanced Inspection Coordination

Inspections for compliance relating to the employment of foreign nationals in Belgium is a responsibility at both the federal and regional levels (Brussels, Flanders, and Walloon Regions, and the German-speaking community).

On June 11, 2011, the Belgian federal authorities entered into a cooperation agreement with these regional authorities. The agreement will enhance inspections related to the employment of foreign nationals in Belgium by coordinating inspections and facilitating the exchange of information between the inspection services.

The Belgian federal authorities have approved the cooperation agreement by an Act dated March 1, 2013, which took effect March 31, 2013.

Increase in Administrative Fees for Residence Permits

Belgian residence permits are electronic identification cards, issued by the municipal authorities but produced by an external company. The Belgian Ministry of Interior Affairs recently decided to slightly increase (from 3 to 5 EUR) the fees that are charged to municipalities for these electronic ID cards. The overall fees charged to applicants also will increase.

A Royal Decree dated March 15, 2013, that took effect on April 1 determines the new fees chargeable to the municipal authorities:

  • The fee for “regular” processing (3 to 5 weeks) of an electronic residence permit is now 15 EUR;
  • If transport of the permits is handled exclusively by an external company, the fees for “very urgent” processing (2 working days) and “urgent” processing (3 working days) are 180 and 116 EUR, respectively. If the municipality is also involved in the transport of the permits, these fees may be 86 or 57 EUR, respectively.

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8.         Firm In The News

New Publications and Items of Interest

Cyrus Mehta spoke at the American Immigration Lawyers Association’s Philadelphia Chapter conference on March 15, 2013.  Mr. Mehta was the Program Chair, Basic Immigration Law 2013, at Practising Laws Institute, New York, March 14, 2013

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