Headlines:

1. President Announces Thaw in Relations With Cuba – The measures President Obama announced included, among other things, initiating discussions to re-establish diplomatic relations with Cuba, and facilitating an expansion of travel.

2. U.S. District Court Dismisses Sheriff’s Challenge to Obama’s Executive Action – The judge shot down the three main arguments the plaintiff made to support his motion for a preliminary injunction.

3. DOL Elaborates on Procedures Under Comite de Apoyo Decision Re H-2B Prevailing Wages – – In response to inquiries, the Department of Labor’s Office of Foreign Labor Certification recently elaborated on the procedures for implementing the decision in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis.

4. USCIS Adds Five Countries To H-2A, H-2B Visa Program Participation – The Czech Republic, Denmark, Madagascar, Portugal, and Sweden were added to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year.

5. DOL Announces 2015 H-2A Adverse Effect Wage Rates – The 2015 AEWRs, broken down by state, range from a low of $10 (Alabama) to a high of $13.59 (Kansas, Nebraska, North Dakota, and South Dakota).

6. ABIL Global: France – New work permit forms are effective January 1, 2015.

7. New Publications and Items of Interest – New Publications and Items of Interest

8. Member News – Member News

9. Government Agency Links – Government Agency Links

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Details:

1. President Announces Thaw in Relations With Cuba

On December 17, 2014, President Barack Obama announced a thaw in the United States’ relations with Cuba. He noted that decades of U.S. isolation of Cuba have failed to accomplish any U.S. goals.

The measures President Obama announced included, among other things, initiating discussions to re-establish diplomatic relations with Cuba, and facilitating an expansion of travel under general licenses for the 12 existing categories of travel to Cuba authorized by law, including: (1) family visits; (2) official business of the U.S. government, foreign governments, and certain intergovernmental organizations; (3) journalistic activity; (4) professional research and professional meetings; (5) educational activities; (6) religious activities; (7) public performances, clinics, workshops, athletic and other competitions, and exhibitions; (8) support for the Cuban people; (9) humanitarian projects; (10) activities of private foundations or research or educational institutes; (11) exportation, importation, or transmission of information or information materials; and (12) certain export transactions that may be considered for authorization under existing regulations and guidelines.

Also announced was raising remittance levels from $500 to $2,000 per quarter for most donations to Cuban nationals, and other measures to facilitate trade and commerce.

FACT SHEET

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2. U.S. District Court Dismisses Sheriff’s Challenge to Obama’s Executive Action

On December 23, 2014, Judge Beryl Howell of the U.S. District Court for the District of Columbia denied Maricopa County, Arizona, Sheriff Joseph Arpaio’s motion for a preliminary injunction against the United States and federal officials. Sheriff Arpaio’s suit alleged that certain immigration policies announced by President Barack Obama on November 20, 2014, are unconstitutional, otherwise illegal, and should be stopped from going into effect. The judge granted the U.S. government’s motion to dismiss for lack of subject matter jurisdiction.

Judge Howell noted that the suit “raises important questions regarding the nation’s immigration policies, which affect the lives of millions of individuals and their families. The wisdom and legality of these policies deserve careful and reasoned consideration.” She said that the key question in this case, however, “concerns the appropriate forum for where this national conversation should occur.” She raised the issue of standing, which she noted ensures that courts act as judges rather than policymakers. “The role of the Judiciary is to resolve cases and controversies properly brought by parties with a concrete and particularized injury—not to engage in policymaking better left to the political branches,” she said.

Sheriff Arpaio’s suit challenged, among other things, the Obama administration’s program launched in 2012 known as Deferred Action for Childhood Arrivals (DACA). The suit also challenged President Obama’s recent expansion of DACA and creation of a new program for deferred action for parents of U.S. citizens or lawful permanent residents (DAPA). Judge Howell noted that the executive branch has long used “deferred action” to implement enforcement policies and priorities. ” Under long-existing regulations, undocumented immigrants granted deferred action may apply for authorization to work in the United States,” she added, noting that “[f]or almost twenty years, the use of deferred action programs has been a staple of immigration enforcement.”

COURT’S OPINION

FULL TEXT of similar lawsuit filed by more than 20 states

THE OBAMA ADMINISTRATION’S MEMORANDA and a related White House address announcing the actions

MEMORANDA ON MODERNIZING AND STREAMLINING THE U.S. VISA SYSTEM

MEMORANDA ON ESTABLISHING A WHITE HOUSE TASK FORCE ON NEW AMERICANS

 

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3. DOL Elaborates on Procedures Under Comite de Apoyo Decision Re H-2B Prevailing Wages

In response to inquiries, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) recently elaborated on the procedures for implementing the decision in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis, No. 14-3557 (3d Cir.). That decision invalidated DOL regulations authorizing employers to use employer-provided wage surveys for prevailing wage determinations for H-2B temporary foreign workers. The DOL stated:

Employers with a pending H-2B prevailing wage request: Employers who have a pending prevailing wage determination request that is based on an employer-provided survey may modify that request to use a Service Contract Act (SCA) or Davis Bacon Act (DBA) wage determination or a wage based on a Collective Bargaining Agreement (CBA). That request will not be treated as a new filing and the request will be processed based on the original filing date. The OFLC reminded employers that the request must specify precisely which SCA or DBA wage determination is being used or provide a copy of the Collective Bargaining Agreement. In the absence of such a request, the National Prevailing Wage Center (NPWC) will issue the prevailing wage determination based on the Occupational Employment Statistics (OES) mean for the occupation.

Employers who have received an H-2B prevailing wage determination: Employers who have already received a prevailing wage determination based on an employer-provided survey but who have not yet filed their application with the Chicago National Processing Center (NPC) may request a redetermination from the NPWC irrespective of the time limits set forth in 20 CFR § 655.10(g). An employer who has received a prevailing wage determination based on an employer-provided survey may use the survey-based wage rate in its recruiting, the OFLC said. Employers who have filed their application with the NPC, and whose applications are adjudicated favorably, will receive a supplemental prevailing wage determination (SPWD) based on the OES mean for the occupation, along with the certification. The SPWD will provide the opportunity to seek a redetermination under 20 CFR § 655.10(g). If, upon redetermination, the use of an alternative wage source (SCA, DBA, or CBA) is approved, the employer should return the original certification to the NPC and a new certification will be issued.

OFLC’s DECEMBER 23, 2014 ANNOUNCEMENT

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4. USCIS Adds Five Countries To H-2A, H-2B Visa Program Participation

U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security, in consultation with the Department of State, have added the Czech Republic, Denmark, Madagascar, Portugal, and Sweden to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year. The notice listing the 68 eligible countries was published in the Federal Register on December 16, 2014.

The H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs, respectively. USCIS only approves H-2A and H-2B petitions for nationals of countries the Secretary of Homeland Security has designated as eligible to participate in the programs. USCIS may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.

ANNOUNCEMENT of 68 countries

FEDERAL REGISTER NOTICE of 68 countries

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5. DOL Announces 2015 H-2A Adverse Effect Wage Rates

On December 19, 2014, the Department of Labor’s (DOL) Office of Foreign Labor Certification published a notice in the Federal Register announcing new Adverse Effect Wage Rates (AEWRs) for each state, based on the Farm Labor Survey conducted by the Department of Agriculture. The AEWRs are the minimum hourly wage rates the DOL has determined must be offered and paid by employers to H-2A foreign agricultural workers and workers in corresponding employment for a particular agricultural job and area, so that the wages of similarly employed U.S. workers will not be adversely affected.

The 2015 AEWRs, broken down by state, range from a low of $10 (Alabama) to a high of $13.59 (Kansas, Nebraska, North Dakota, and South Dakota).

NOTICE

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6. ABIL Global: France

New work permit forms are effective January 1, 2015.

For new work permit forms effective January 1, 2015, the employer abroad, the host company in France, and the employee now must provide additional information, summarized below.

Information Required From the Home Company Abroad

a) Registration number or employer ID number of the home company and the name of the registration authority (e.g., the commercial registry and the chamber of commerce).

b) Date of creation of the company.

c) Name of the legal representative of the home company.

d) Main activity of the home company.

e) For intra-company transferees, website or weblink to the Internet page showing the link between the home company and the French host company plus the date of acquisition or date of creation of the French affiliate company.

f) For the international provision of services, the total cost of the services to be provided and the copy of the service agreement between the employer and the client in France.

g) In the absence of a social security bilateral agreement between the home country and France, registration of the foreign employer with the French social security administration for payment of the French social security contribution. Evidence must include proof of registration with Centre National Firmes Etrangères (CNFE, Foreign Firms National Center) and Humanis International in the work permit application. However, these documents may not be available for the very first work permit application and clarification may be needed on what other documents may be provided in lieu of the registration certificates, such as a sworn statement from the employer.

Information Required From the Host Company in France

a) For intra-company transferees, the role of the French entity in the corporate group and the date on which the French entity came under control of the group or was formed.

b) Details of the agent representing the foreign employer in France for the purpose of co-coordinating the work permit application, and the entity responsible for paying the government fees.

c) In case of regulated activity, the identity of the regulating body, and proof and details of certification.

d) The monthly or annual gross salary applicable for an equivalent position in the host company (or in the sector of activity in case of international provision of services), excluding any payment-in-kind.

Information and Documents Required From the Employee

a) Copy of initial employment contract or, if not available, copy of the initial employment offer letter.

b) Copy of employment certificates from previous employers proving adequate professional experience (does not apply to intra-company transfers and secondments).

As noted above, starting January 1, 2015, work permit applications must be made on new forms. Work permits issued by the authorities before this date remain valid.

As some of the requirements may be difficult to fulfill immediately or in a timely manner, adjustments may be made during an interim period. Stay tuned.

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7. New Publications and Items of Interest

USCIS teleconference on DACA expansion. U.S. Citizenship and Immigration Services will hold a “listening session” on Tuesday, January 13, 2015, from 2 to 3:30 p.m. (ET) to discuss the expansion of DACA as part of the recently announced executive actions on immigration. TO REGISTER, submit your e-mail address, then select “Subscriber Preferences” and select the “Event Registration” tab to provide your name and organization, then “Submit.”  For more information or to ask about registration, email public.engagement@uscis.dhs.gov.

E-Verify webinar for executives. U.S. Citizenship and Immigration Services will present an “E-Verify for Executives” webinar on January 13 and 20 at 4 p.m. ET.  MORE INFORMATION

New border wait time app. U.S. Customs and Border Protection has launched a Border Wait Time app to make it easier for travelers to plan their trips across the border. The app provides estimated wait times and open lane status at land ports of entry, allowing travelers to make an informed decision about where and when to cross the border. Wait times for pedestrian, passenger, and commercial vehicle crossings are broken down by lane type (e.g., standard, SENTRI, NEXUS, FAST, Ready Lane). Travelers can download the app at no charge from Apple’s App Store and Google Play.  DETAILS

The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis.  Dozens of members of the Alliance of Business Immigration Lawyers co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

 

The latest edition adds a chapter on Singapore.  Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.”  She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.”  She noted that the India chapter “is particularly good.  The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals.  The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice.  Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed to be used by:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country.  Useful links to additional resources and forms are included.  Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $299, but discounts are available.  Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOG

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8. Member News

Bernard Wolfsdorf has published a new blog entry, “EB-5 Predictions for 2015: The Year of the Goat”

Stephen Yale-Loehr was quoted in the Pittsburgh Post-Gazette in an article about the prospects for comprehensive immigration reform. Mr. Yale-Loehr stated that “the chances of comprehensive immigration reform being enacted in 2015 or 2016 are almost nil.” He noted that although many Republicans would like some kind of reform to attract more Latino voters, “they run into members of their party in the House where in their own districts, immigration is not an issue. That tension in the Republican Party will make it very hard for leaders like John Boehner to get a package that can move through the House.”

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9. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

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

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

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

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

5. New Publications and Items of Interest – New Publications and Items of Interest

6. Member News – Member News

7. Government Agency Links – Government Agency Links

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Details:

1. Obama Takes Executive Action on Immigration

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

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

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

Some of the actions called for in the memo include:

• U.S. Citizenship and Immigration Services (USCIS) working with the Department of State (DOS) to improve the system for determining when immigrant visas are available to applicants during the fiscal year. DOS has agreed to modify its visa bulletin system “to more simply and reliably make such determinations,” and the memo states an expectation that USCIS will revise its current regulations “to reflect and complement these proposed modifications.”
• USCIS considering “amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where [beneficiaries] seek to change jobs or employers.”
• U.S. Immigration and Customs Enforcement (ICE) developing regulations for notice and comment to expand the degree programs eligible for Optional Practical Training (OPT) and to extend the time period and use of OPT for foreign STEM (science, technology, engineering, and mathematics) students and graduates.
• USCIS issuing guidance or regulations to clarify the standard for granting a national interest waiver green card, with the aim of promoting its greater use.
• USCIS proposing a program allowing parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for national interest waivers but “who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.” The regulation will include income and resource thresholds.
• USCIS issuing a policy memorandum to provide “clear, consolidated guidance” on the meaning of “specialized knowledge” in adjudicating L-1B petitions.
• USCIS issuing a policy memorandum providing guidance on worker portability, specifically with respect to what constitutes a “same or similar” job, with a goal of removing “unnecessary restrictions” on “natural career progression.”

MEMO explaining high-skilled business and workers

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

The overarching goals of the Southern Border and Approaches Campaign, of which the Joint Task Forces are a part, will be to enforce immigration laws and interdict individuals seeking to enter the U.S. without authorization; degrade international criminal organizations; and decrease the threat of terrorism.

MEMO explaining enforcement efforts

Ending the Secure Communities program and replacing it with the Priority Enforcement Program, and prioritizing criminal offenses for arrest, detention, and removal.

MEMO on Prosecutorial Discretion

MEMO on Secure Communities

Expanding Deferred Action for Childhood Arrivals (DACA) to encompass a broader class of children. DACA eligibility had been limited to those who were under 31 years of age on June 15, 2012, who entered the United States before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the United States before the age of 16, and not just those born after June 15, 1981. The entry date will be adjusted from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two.

MEMO explaning DACA

Extending eligibility for deferred action to parents of U.S. citizens and lawful permanent residents. This new program, called Deferred Action for Parental Accountability (DAPA), will include individuals who (i) are not removal priorities under the new policy, (ii) have been in the United States at least five years, (iii) have children who on the date of the announcement (November 20, 2014) were U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis. They may then apply for work authorization, provided they pay a fee. Each individual will undergo a background check of relevant national security and criminal databases, including DHS and FBI databases.

MEMO explaining DAPA

Expanding I-601A provisional waivers to spouses and children of lawful permanent residents. The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents. At the same time, the administration will further clarify the “extreme hardship” standard that must be met to obtain the waiver.

MEMO explaining I-601A waivers

Revising parole rules. DHS will begin rulemaking to identify the conditions under which “talented entrepreneurs” should be paroled into the United States, on the ground that their entry would yield a “significant public economic benefit.” DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given advance parole to leave the United States, including those who obtain deferred action, they will not be considered to have departed. Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart.

MEMO explaining parole for entrepreneurs

MEMO explaning parole for parole-in-place and deferred action

MEMO explaning advance parole

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

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

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

President Obama has said he would reverse the executive actions if Congress passes a comprehensive immigration legislation that he can sign. Republicans countered that they would fight whatever changes the President orders “tooth and nail,” according to House Speaker John Boehner (R-Ohio). He said all options were on the table. Senate Majority Leader Mitch McConnell (R-Ky.) said that unilateral executive actions on immigration are like “waving a red flag in front of a bull.”

A letter transmitted by 136 law professors to the White House on November 20, 2014, and updated on November 25, supports President Obama’s legal authority to expand the DACA program and to establish the Deferred Action for Parental Accountability (DAPA) program.

President Obama also issued an “immigration blueprint,” outlined in “Building a 21st Century Immigration System,” which includes additional proposals.

The memoranda summarized above, along with the White House address announcing the actions and related USCIS and ICE info.

ADDITIONAL MEMORANDA on modernizing and streamlining the U.S. visa system

ADDITIONAL MEMORANDA on establishing the White House Task Force on New Americans

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

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

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

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

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

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

FACT SHEET

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

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

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

The working group will seek to:

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

To achieve these objectives the working group will:

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

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

FACT SHEET

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4. ABIL Global: Poland

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

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

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

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

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

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

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5. New Publications and Items of Interest

The 2014 edition of the Global Business Immigration Practice Guide has been released by LexisNexis.  Dozens of members of the Alliance of Business Immigration Lawyers co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

The 2014 edition adds a chapter on Singapore.  Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.”  She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.”  She noted that the India chapter “is particularly good.  The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals.  The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice.  Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed to be used by:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country.  Useful links to additional resources and forms are included.  Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $299, but discounts are available.  Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOG

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6. Member News

Klasko Immigration Law Partners, LLP recently announced their ranking as a Tier 1 immigration law firm by U.S. News and World Report and Best Lawyers. The firm received a Tier 1 ranking nationally and in Philadelphia and New York City.

Charles Kuck was quoted in the Global Delivery Report, in “What the U.S. Election Results Mean for the Tech Industry Visa Problem.” He noted, “One thing is clear: the IT industry believes that U.S. schools are not turning out enough qualified individuals. If they were, they would not be using foreign nationals, who cost them far more to hire, given filing and attorney fees, and mandatory wage amounts.

Cyrus Mehta was Discussion Leader of “Working Around the H-1B Debacle” on November 14, 2014, at American Immigration Lawyers Association’s Mexico District Chapter Conference, Buenos Aires, Argentina.

Mr. Mehta has co-authored a new blog entry. “The Fate of Executive Action on Immigration After the Midterm Elections”

Mr. Mehta will be presenting on “Representing Children in Immigration Proceedings and the Immigration Executive Orders of President Obama” on December 2, 2014, at a CLE of the Office of the Chief Counsel to the Departmental Disciplinary Committee, First Department, New York.

Mr. Mehta was quoted in an article on Forbes.com, “Will President Obama Help Legal Immigrants Too?”

Mr. Mehta was on the “Takeaway” public radio show with John Hockenberry broadcast nationally on November 20, 2014, to discuss President Obama’s executive actions on immigration.

Mr. Mehta has published a summary of President Obama’s recent immigration executive actions.

Angelo Paparelli spoke on KNX 1070 (CBS radio affiliate in Los Angeles) in a one-hour report on President Obama’s executive actions on immigration on November 24, 2014, at 10 am PST. It featured Mr. Paparelli and an opponent of immigration, with extensive audience call-in.

Mr. Paparelli was quoted on Inc.com, in “If You Have Employees, Obama’s Immigration Plans Will Most Likely Affect You.” “Employers should be alert to the possibility that a new population of workers who may have been silent at the worksite may speak up, and employers will want to generally review their employment practices,” he noted. Mr. Paparelli counseled proactively reviewing hiring and screening procedures and considering a “voluntary audit” of I-9 forms.

Stephen Yale-Loehr was quoted on Time.com regarding the potential political fallout of President Obama’s announcement on executive actions to reform the U.S. immigration system. Mr. Yale-Loehr noted that “Republicans will argue that even the smallest executive immigration actions subvert Congress’ power.”

Mr. Yale-Loehr was quoted in the New York Times in “Obama’s Executive Order on Immigration Is Unlikely to Include Health Benefits,” published on November 19, 2014. “Just as the president has broad discretion to decide whether to allow undocumented individuals to get a temporary reprieve from deportation, he also has broad authority to decide whether to grant them work authorization and health benefits. In this case, it appears he is willing to grant the former but not the latter.”

Mr. Yale-Loehr was also quoted on President Obama’s executive actions on immigration in the Huffington Post and in the Houston Chronicle.

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7. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

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

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

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

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

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

6. New Publications and Items of Interest – New Publications and Items of Interest

7. Member News – Member News

8. Government Agency Links – Government Agency Links

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Details:

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

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

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

ANNOUNCEMENT

Statistical updates for FY 2014 Q4.  OFLC has issued updated program fact sheets with selected statistics for the permanent labor certification program, prevailing wage determination program, H-1B temporary visa program, H-2A temporary agricultural visa program, and H-2B temporary nonagricultural visa program.  Reports are derived from program data as of September 30, 2014.

UPDATED FACT SHEETS

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

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

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

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

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

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

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

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

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

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

D.C. CIRCUIT’S DECISION

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3. USCIS To Implement Haitian Family Reunification Parole Program

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

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

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

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

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

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

NOTICE

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4. USCIS Extends TPS for Honduras, Nicaragua

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

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

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

HONDURAS NOTICE

NICARAGUA NOTICE

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5. ABIL Global: France

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

Draft Law on Rights of Foreigners

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

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

Purpose of the Draft Law

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

Increased Use of Multi-Annual Permits

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

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

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

Talent Passport

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

1. Young Qualified Graduate (jeune diplômé qualifié): Requires: (i) a master’s or doctorate-level degree earned in France or sponsorship by an employer qualified as an Innovating Start-Up (jeune entreprise innovante) by the Fiscal Code; (ii) a French employment contract; and (iii) a threshold salary determined by decree.  This is a new category.

2. Highly Qualified Worker (travailleur hautement qualifié): Requires: (i) a three-year university degree or five years of experience; (ii) a French employment contract of at least 12 months; and (iii) a threshold salary determined by decree.  This category absorbs the previous European Blue Card without substantial change.

3. Inter-Company Transferee (ICT) (salarié en mission): Requires: (i) an intra-group transfer; (ii) a three-month prior employment; and (iii) a threshold salary determined by decree.  Under the existing scheme, the three-month prior employment is not required when the ICT becomes a French employee.  This category absorbs the previous ICT category without any other substantial change.

4. Scientist (chercheur): Requires: (i) a master’s level or higher degree; (ii) tasks of research or teaching at the university level; and (iii) an agreement with a government-approved body.  This category absorbs the previous Scientist category, with no significant change.

5. Entrepreneur (créateur d’entreprise): Requires: (i) a master’s-level degree or five years of experience; and (ii) creation of an enterprise in accordance with criteria to be determined by government decree.  This is a new category.

6. Investor (investisseur): Requires a direct investment in infrastructure, as determined by government decree.  This category absorbs the previous Exceptional Economic Contribution.  The amount of investment is expected to be lowered from €10,000,000 to €500,000 and the number of jobs to be created from 50 to 10.

7. Executive Officer (mandataire social): Requires: (i) nomination of a legal representative or executive officer of an entity registered in France; and (ii) a threshold income to be defined by decree.  This category was previously covered under Competence and Talent and does not change substantially.

8. Artist (artiste): Requires: (i) a contract approved by the cultural (DRAC) or labor (SMOE) authorities for an artistic or cultural activity; and (ii) threshold compensation to be defined by decree.  This preexisting category is being merged here without substantial change.

9. Foreigner Renowned Internationally in a scientific, literary, intellectual, educational, or sports domain (étranger ayant une renommée internationale dans un domaine scientifique, littéraire, intellectuel, éducatif, ou sportif): Requires: (i) international fame; and (ii) an activity in France in one of the stated areas.  This pre-existing category is being merged here with changes to be determined by implementing regulations.

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

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

Elimination of the Temporary Work Permit (APT)

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

New Law to Combat Fraud in Framework of Posted Workers

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

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

Declaration of Posting

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

Due Diligence and Financial Responsibility of the Payer

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

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

Online Publication of Sentences

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

Unions’ Right to Sue

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

Consequences for Foreign Employers of Posted Employees

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

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6. New Publications and Items of Interest

USCIS updates DACA FAQs. USCIS updated its Frequently Asked Questions (FAQs) on Deferred Action for Childhood Arrivals on October 23, 2014. LATEST FAQs

The 2014 edition of the Global Business Immigration Practice Guide has been released by LexisNexis.  Dozens of members of the Alliance of Business Immigration Lawyers co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

The 2014 edition adds a chapter on Singapore.  Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.”  She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.”  She noted that the India chapter “is particularly good.  The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals.  The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice.  Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed to be used by:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country.  Useful links to additional resources and forms are included.  Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $299, but discounts are available.  Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOG

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7. Member News

Laura Danielson recently authored “Same-Sex Couples Finally Gain Immigration Benefits After Repeal of DOMA,” which was published in Lavender, October 30-November 12, 2014.

Mark Ivener presented on “EB-5 Investor Green Cards” at Destination Los Angeles, sponsored by Arcadia Association of Realtors, Pasadena, California, on October 2, 2014.

H. Ronald Klasko was the keynote speaker at the 2014 Overseas Investment & International Wealth Management Forum in Beijing. Mr. Klasko discussed best practices for EB-5 regional centers and the impact of the China EB-5 quota retrogression. Mr. Klasko was the delegate for the Association to Invest in the USA (IIUSA) 2014 trade mission to CIFIT (18th annual China International Fair for Investment & Trade in Xiamen, China).

Sharon Mehlman spoke on a panel, “The Latest Administrative, Legislative and Political Updates Affecting Worksite Enforcement,” at the 4th Annual Worksite Compliance Symposium, Stanford University, Rock Center for Corporate Governance, in Palo Alto, California, on October 28, 2014.

Cyrus Mehta recently authored a practice advisory, “Ethical Issues in Representing Children in Immigration Proceedings.”  Mr. Mehta is chair of the American Immigration Lawyers Association’s National Ethics Committee.

Mr. Mehta also authored a recent blog entry, “Fogo de Chao v. DHS: A Significant Decision For L-1B Specialized Knowledge Chefs And Beyond”

Angelo Paparelli recently authored a new blog entry.  “Immigration ‘Fire on the Ground’—What’s Next for the L-1B Visa?”

Stephen Yale-Loehr will moderate an EB-5 immigrant investor forum sponsored by the New York Federal Reserve Board on November 18, 2014, in Rochester, New York. FOR MORE INFORMATION OR TO REGISTER

Mr. Yale-Loehr was quoted in an article, “No Good Options for GOP on Obama’s Immigration Move,” published on October 30, 2014, on Time.com. Commenting on the possibility that Republicans may sue President Obama if he exercises discretion to prevent undocumented immigrants from being removed, Mr. Yale-Loehr noted that the President has “wide discretion when it comes to immigration.” He added that expanding Deferred Action for Childhood Arrivals, one of the possible options, falls “within the president’s inherent immigration authority.”

Mr. Yale-Loehr spoke on October 30, 2014, at a NAFSA bi-regional conference in Albany, New York, on questions international students should ask potential employers when applying for jobs.  MORE INFORMATION ABOUT THE CONFERENCE

The following Alliance of Business Immigration Lawyers were listed in Best Lawyers 2015:

ABIL U.S. members:
Francis Chin
Laura Danielson
Rami Fakhoury
Bryan Funai
Steve Garfinkel
Kehrela Hodkinson
Mark Ivener
H. Ronald Klasko
Charles Kuck
Vincent Lau
Robert Loughran
Sharon Mehlman
Cyrus Mehta
John Nahajzer
Angelo Paparelli
Julie Pearl
William Reich
Bernard Wolfsdorf
Stephen Yale-Loehr

ABIL Global members:
Enrique Arellano
Bernard Caris
Maria Celebi
Eugene Chow
Arnold Conyer
Laura Devine
Avi Gomberg
Kenneth Ing
Jelle Kroes
Gunther Mävers
Marco Mazzeschi
Ariel Orrego-Villacorta
Nicolas Rollason
Maria Isa Soter
Karl Waheed
Chris Watters

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8. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

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

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

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

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

5. New Publications and Items of Interest – New Publications and Items of Interest

6. Member News – Member News

7. Government Agency Links – Government Agency Links

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Details:

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

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

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

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

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

Those whose entries are selected will be directed to a confirmation page that will provide further instructions, including information on fees connected with immigration to the United States.  Entrant Status Check will be the only means by which selectees will be notified of their selection for DV-2016.  The Department of State will not mail out notification letters or notify selectees by email.  U.S. embassies and consulates will not provide a list of selectees.  DOS noted, “You are strongly encouraged to access Entrant Status Check yourself and not to rely on someone else to check and inform you.”
To receive a DV to immigrate to the United States, those who are selected still must meet all eligibility requirements.  “These requirements may significantly increase the level of scrutiny required and time necessary for processing for natives of some countries listed in this notice including, but not limited to, countries identified as state sponsors of terrorism,” the DOS notice states.

FEDERAL REGISTER NOTICE with full details

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2. USCIS Announces New Secure Blue Ink for Many Stamps

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

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

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

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

BULLETIN from U.S. Customs and Border Protection with examples of the new stamps

DETAILED USCIS GUIDANCE on how to examine documents for I-9 verification purposes

USCIS INFORMATION ON ACCEPTABLE DOCUMENTS

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3. USCIS Extends Deferred Enforced Departure for Liberians

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

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

Certain individuals are ineligible for DED, including:

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

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

USCIS ANNOUNCEMENT

RELATED Q&A

For additional information, see the DED GRANTED COUNTRY—LIBERIA WEBPAGE on the USCIS webpage

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

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

The designated POEs include locations in Canada, Vermont, New York, Michigan, Washington, and Montana. LIST OF DESIGNATED POEs

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5. New Publications and Items of Interest

The 2014 edition of the Global Business Immigration Practice Guide has been released by LexisNexis.  Dozens of members of the Alliance of Business Immigration Lawyers co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

The 2014 edition adds a chapter on Singapore.  Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.”  She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.”  She noted that the India chapter “is particularly good.  The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals.  The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice.  Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed to be used by:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country.  Useful links to additional resources and forms are included.  Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $299, but discounts are available.  Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOG

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6. Member News

Robert F. Loughran organized the ILW EB-5 Conference held in Chicago and moderated a number of panels regarding forming and operating an EB-5 regional center.  Focusing on the perspective of developers and business innovators, Mr. Loughran’s presentation focused on learning from recent USCIS terminations of regional centers when developing the I-924 Application for Regional Center Designation as well as EB-5 filings generally.

Mr. Loughran’s chapter on “Terminations of EB-5 Centers” was published in August 2014 in AILA’s third edition of Immigration Options for Investors & Entrepreneurs.

Cyrus Mehta recently authored several new blog entries.  “Would the Religious Freedom Ground of Inadmissibility Still Apply to Indian Prime Minister Narendra Modi?” “Impact of EB-5 Retrogression On The Regional Center Loan Model”

Stephen Yale-Loehr was quoted in the Washington Post in an article about EB-5 immigrant investor visas.  Among other things, Mr. Yale-Loehr noted that the EB-5 investor program is “a four-way win.  It’s a win for U.S. taxpayers because it brings in foreign money to help develop projects at no expense to the taxpayer.  It’s a win for U.S. workers because it creates jobs.  It’s a win for U.S. project developers because it allows them to get money for projects that [they] might not be able to get otherwise.  It’s also a win for the foreign investors because they get a green card from their investment in United States.”

Mr. Yale-Loehr was interviewed for a SinoVision TV segment on EB-5 immigrant investor green cards.  His quotes are at 2:30-3:30 and 11:20-13:00 minutes of the segment.

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7. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

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

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

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

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

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

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

7. New Publications and Items of Interest – New Publications and Items of Interest

8. Member News – Member News

9. Government Agency Links – Government Agency Links

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Details:

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

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

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

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

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

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

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2. DOS Changes Fees for Visa and Citizenship Services

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

Some of the changes include:

• The processing fee for E treaty trader and treaty investor visa applications will decrease from $270 to $205.
• The processing fee for an employment-based visa application (based on an approved I-140 alien worker or I-526 alien entrepreneur petition) will decrease from $405 to $345.
• Other immigrant visa application fees (including for I-360 self-petitioners, special immigrant visa applicants, and all others) will decrease from $220 to $205.
• Certain qualifying Iraqi and Afghan special immigrant visa applicants are statutorily exempt from paying any visa-related fees.
• The Immigrant Visa Security Surcharge, paid by all applicants except those who are statutorily exempted from paying fees, will increase from $75 to $100.
• The fee for processing an application for waiver of the two-year residence requirement for J-1 exchange visitors will decrease from $215 to $120.
• The affidavit of support fee will increase from $88 to $120.
• The fee for processing renunciation of U.S. citizenship requests will increase from $450 to $2,350.

Comments on the interim final rule, which was published in the Federal Register on August 28, 2014, are due by October 21, 2014.

THE RULE, which includes information on additional fee changes and the rationale for the changes.

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

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

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

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

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

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

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

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

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

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

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

MORE INFORMATION ON ESTA

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4. USCIS Clarifies Policy on Using Expedited Delivery Services

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

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

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

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

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

• Including a valid prepaid air bill or shipping label when submitting an application, petition, or response to a request for evidence.  “Providing a prepaid shipping label directly from the delivery service is the best way to avoid delivery errors. You will not need to write in an account number if you use a shipping label,” USCIS noted.
• Entering the name in both the “to” and “from” fields on the air bill or shipping label.
• Never listing USCIS as the sender and not marking “bill to sender.”
• Paying all delivery costs in advance, and including the prepaid air bill or shipping label with the submission (as noted above).

USCIS said it will not honor shipping labels sent after the initial filing.  “If the delivery costs are not paid in full, or if you do not choose to send us a prepaid air bill or shipping label, we will send the documents to you by regular U.S. mail,” USCIS said.  Also, the agency noted that using a prepaid air bill or shipping label does not speed up adjudication and will not always result in faster delivery of the notice.

USCIS’S CLARIFYING ANNOUNCEMENT

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

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

• Change or extension of nonimmigrant status for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired;
• Extension of certain grants of parole made by USCIS;
• Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship;
• Expedited processing of immigrant petitions for immediate relatives (currently in the United States) of U.S. citizens;
• Expedited adjudication of employment authorization applications, where appropriate; and
• Consideration for waiver of fees associated with USCIS benefit applications.

ANNOUNCEMENT

MORE INFORMATION about similar measures for those affected by unforeseen circumstances in their home countries.

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

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

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

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

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

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

ANNOUNCEMENT

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7. New Publications and Items of Interest

The 2014 edition of the Global Business Immigration Practice Guide has been released by LexisNexis.  Dozens of members of the Alliance of Business Immigration Lawyers co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

The 2014 edition adds a chapter on Singapore.  Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.”  She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.”  She noted that the India chapter “is particularly good.  The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals.  The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice.  Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed to be used by:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country.  Useful links to additional resources and forms are included.  Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $299, but discounts are available.  Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOGS

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8. Member News

The following ABIL members were recognized in Best Lawyers:

U.S. members:
Francis Chin
Laura Danielson
Steve Garfinkel
Mark Ivener
H. Ronald Klasko
Charles Kuck
Vincent Lau
Robert Loughran
Sharon Mehlman
John Nahajzer
Julie Pearl
William Reich
Bernard Wolfsdorf
Stephen Yale-Loehr 

Global members:
Avi Gomberg
Kenneth Ing

In other news…

Cyrus Mehta co-authored a recent blog entry, “Do We Really Have To Wait For Godot?: A Legal Basis For Early Filing Of An Adjustment Of Status Application”

Angelo Paparelli was quoted extensively in a Bureau of National Affairs article on problems in H-1B adjudications, published on August 21, 2014.  The article notes reports that U.S. Citizenship and Immigration Services (USCIS) has narrowed the “specialty occupation” definition, which is making it very difficult for some to obtain H-1B highly skilled visas.  Mr. Paparelli noted, among other things, that this is “a long and festering problem that has not gotten much media attention.  Most of the focus is on the shortage of visa numbers, but when you lift up the cover and look under the hood, that’s only the beginning.”  He said the employer’s standard, rather than the Department of Labor’s Occupational Outlook Handbook (OOH), should apply.  He also noted that sometimes the OOH standards are applied incorrectly.  The article is available at no charge by registering HERE.

Mr. Wolfsdorf was quoted on CNN Money in an article on the shortage of EB-5 investor visas due to an influx of Chinese applicants.  “It’s like the movie house is sold out—there are no spare tickets left.  Pretty much all the visas for this year are accounted for,” he said.

Mr. Paparelli and Mr. Yale-Loehr participated in a webinar on August 28, 2014, sponsored by IIUSA, the trade association of EB-5 regional centers.  The webinar focused on current trends and forecasts in the EB-5 program, including I-526, I-829, and I-924 petitions.  To obtain an audio recording of the webinar, go to https://iiusa.org.

Mr. Yale-Loehr was quoted on Ozy.com in an article on EB-5 investing in sports stadiums and arenas as a way of coming to the United States.  Mr. Yale-Loehr noted that “[m]any [EB-5 investors] are coming primarily to make sure their children have a high-quality U.S. education.”

Mr. Yale-Loehr was quoted in the Wall Street Journal on August 27, 2014, in an article on the shortage of EB-5 investor visas due to an influx of Chinese applicants.  He said the likelihood that the visas will be snapped up even more quickly in the next fiscal year “reflects the increasing popularity of the EB-5 program.”

Mr. Yale-Loehr was quoted in the Los Angeles Times on August 30, 2014, in an article on the shortage of EB-5 investor visas due to an influx of Chinese applicants.  He predicted that the influx would slow down.  “It’s been like a four-lane expressway and now it’s going back down to two,” he said.  Mr. Yale-Loehr also noted that the visa program’s use as a funding mechanism for local development projects could mean that the prospect of longer waits for visas will reduce the program’s usefulness for developers trying to complete their projects on tight deadlines: “For businesses that rely on EB-5 money to finance their projects, it will become difficult to start and finish their work.”

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9. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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