Headlines:

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

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

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

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

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

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. Consular Visa/Passport System Crashes

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

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

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

PRESS BRIEFING TRANSCRIPT,  which includes related information among other topics

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

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

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

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

VISA BULLETIN FOR AUGUST 2014

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

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

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

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

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

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

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

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

NEW GUIDANCE MEMO

INFORMATION ON REGISTERED NURSES

The guidance indicates that advanced practice nursing positions include nurse anesthetists, nurse midwives, and nurse practitioners. FURTHER INFORMATION ON THESE SPECIALITIES

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

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

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

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

FEDERAL REGISTER NOTICE announcing the proposed improvements in international travel

FEDERAL REGISTER NOTICE announcing the closure

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5. ABIL Global: Peru

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

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

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

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

• A Service Agreement or Technical Service Agreement (TSA) executed by the foreign entity that will provide the services (Provider) and the local entity receiving the services (Beneficiary Company).
• An appointment letter issued by the Provider appointing the foreign consultant who will come to Peru under the Service Agreement.
• A letter from the Beneficiary Company confirming that it will be the recipient of the services that the foreign consultant will provide.
• A Certificate of Specialization of the foreign consultant issued by the Provider.
• The assignee’s original passport in the case of in-country processing before MICRACIONES.  If processing before a consul abroad, then a copy of the passport will be duly legalized by the Peruvian consulate abroad or certified by apostille and the consultant will remain abroad for processing.
• Other documentation of the assignee and the local company as required.

Translations of the documents must be made in Peru by an official public translator.

The processing time from the date of filing of the application with all required documents is 30 working days for “Obtaining Visa Proceeding,” and 60 working days for in-country processing, according to the rules.  At present, however, in-country processing is taking less time.

The holder of this type of visa cannot open a bank account in Peru, obtain a credit card, or obtain a driver’s license, because he or she is not considered a resident.

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6. New Publications and Items of Interest

Employee-focused USCIS stakeholder engagement. U.S. Citizenship and Immigration Services will hold an employee-focused stakeholder engagement on Thursday, August 7, 2014, from 1:30 to 3 p.m. (Eastern).  USCIS officials will provide an overview of USCIS programs and resources useful to workers, immigrants, and advocates. Topics will include employee rights and responsibilities in the E-Verify and Form I-9 verification processes; Deferred Action for Childhood Arrivals; unauthorized practice of immigration law; and USCIS multilingual materials and outreach. USCIS representatives will also answer questions.

FOR MORE INFORMATION OR TO REGISTER

CRS report on the undocumented in the United States. The Congressional Research Service has released a report, “Unauthorized Aliens in the United States: Policy Discussion.”

THE REPORT, which includes statistics and a discussion of various legal options

Spanish-language E-Verify website redesigned.  The Spanish-language version of the E-Verify website has been redesigned to match the upgraded E-Verify English website released in October 2013.  The E-Verify Spanish website updates include new features, graphics, and more “plain language” content.  New Customer Support and Federal Contractors sections have been added.  E-Verify recommends that interested parties subscribe to the website to receive an alert when new information is posted to the “What’s New” page.  E-Verify also offers monthly webinars in Spanish.

E-VERIFY SPANISH WEBSITE

FOREIGN LANGUAGE RESOURCES PAGE lists links to materials available in Spanish

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.”

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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7. Member News

Robert Loughran presented to the University of Texas Club League of Business Leaders Luncheon on July 14, 2014.  His presentation on immigration reform outlined current problems in the immigration system as well as developments in the unaccompanied minor crisis on the Texas border.

Cyrus Mehta has authored a new blog entry.  “Unaccompanied Child Migrants to the United States: Drop in the Bucket and So Much Hype”

Stephen Yale-Loehr was quoted on time.com.  In an article on executive actions by President Obama, Mr. Yale-Loehr noted, “As a purely legal matter, the President does have wide discretion when it comes to immigration.  Just as DACA [Deferred Action for Childhood Arrivals] was within the purview of the president’s executive authority on immigration, so too would expanding DACA fall within the president’s inherent immigration authority.”

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

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

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

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

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

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. White House Announces Response to Increase in Unaccompanied Children, Families

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

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

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

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

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

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

The Obama administration announced the following related efforts:

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

WHITE HOUSE FACT SHEET
JUNE 30, 2014 PRESS RELEASE
TRANSCRIPT OF PRESIDENT OBAMA’S JUNE 30 REMARKS
PRESIDENT OBAMA’S LETTER TO SPEAKER BOEHNER
TRANSCRIPT OF WHITE HOUSE PRESS SECRETARY EARNEST’S JUNE 20 REMARKS

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2. News Highlights: AILA Conference

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

Department of Labor

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

Federal Register Notice

• DOL is accepting comments on continued use of the current Form 9089.  Comments are due July 7, 2014. FEDERAL REGISTER NOTICE

Prevailing Wage Issues

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

Form 9089 and Beneficiary Qualifications

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

Recruitment Efforts

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

Audit Tiers

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

Case Consolidation

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

SEVP

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

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

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

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

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

ANNOUNCEMENT

RELATED FACT SHEET

FAQ

SECRETARY KERRY’S OP-ED

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

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

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

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

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

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5. ABIL Global: Italy

Various developments have been announced.

New Start-Up Visa

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

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

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

Autonomous Work Visa—for individuals willing to work autonomously (e.g., freelancers, consultants) or to establish a company in Italy.  The autonomous work visa is subject to numerical caps.

Appointed directors employed by a foreign company and temporarily assigned to an Italian-affiliated company may be granted an autonomous work visa without any quota limit.

Elective Residence Visa—for individuals who are interested only in living in Italy without carrying out any work activities.  The elective residence visa is limited to those who have a significant amount of money and savings and are able to live in Italy with no need of work-related income.

The requirements and conditions to apply for the start-up visa are listed on the Italian Ministry of Foreign Affairs website (Startup Visa Guidelines and Italia Startup Procedures).

Expo 2015 Work Permits

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

GUIDELINES

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

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

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

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

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

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

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

New Requirement for Residency Registrations

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

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

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

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6. 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.”

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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7. Member News

The following ABIL members were included in Lawdragon’s list of the top 20 U.S. immigration lawyers:

• H. Ronald Klasko
• Cyrus Mehta
• Angelo Paparelli
• Julie Pearl
• Bernard Wolfsdorf

Mr. Klasko recently presented “Due Diligence Training for EB-5 Projects” at the Invest in Texas Initiative Conference.

Mr. Klasko also recently addressed immigration lawyers in New York on the fundamentals of the EB-5 investor visa program.  The New York chapter of the American Immigration Lawyers Association hosted the annual event.

Mr. Mehta has co-authored a new blog entry.  “Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress—Not Counting Family Members And Parole In Place”

Stephen Yale-Loehr was quoted in a CNN.com article, “Immigrant Children Tread Treacherous Political Landscape,” on June 17, 2014.  Mr. Yale-Loehr observed that the Deferred Action for Childhood Arrivals program may have caused “unintended consequences.”  He noted that President Obama was clear in 2012 about “what his executive action did and did not do.  He did not intend to signal that other children should come to the U.S.  But many times immigration law gets distorted and [the kids may have made the journey] based on those false rumors that children will be allowed to stay here.”

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

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

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

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

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

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

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

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

The Federal Register notice describes the procedures for applying for and participating in the pilot program.

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

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

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

DECISION

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

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

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

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

ANNOUNCEMENT

ANNOUNCEMENT

POLICY MANUAL

UPDATED I-693 WEBPAGE

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3. USCIS Extends TPS Re-Registration Period for Haitians

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

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

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

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

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

REVISED I-821

ANNOUNCEMENT, with additional related links

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4. Corporate Immigration Policies: A Survey

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

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

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

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

1. The majority of ABIL members who responded to the survey (66%) reported that their client companies wait one year before starting the green card process.  The next highest percentage responded that their clients wait more than one year; the third highest reported a wait of six months.
2. When asked whether this time frame changed since the height of the financial crisis, an equal percentage of respondents reported that the wait time had shortened as those responding that there was no change to the wait time.
3. When asked about contingencies on starting (or continuing) the process, over 80% of respondents stated that the employee’s manager must “sign off” to have the process initiated.  One-half of respondents stated that an employee on a performance plan or under some other disciplinary action would cause the process to be delayed or stopped. One member reported that some client companies have “nomination periods” when managers can nominate certain employees for green card sponsorship.
4. When asked about the payment of green card sponsorship, most members (over 80%) reported that the employer pays all fees and expenses in connection with sponsorship.  The next highest percentage reported that the employer pays all fees for the employee but requires the FN employee to pay costs related to family members.  The smallest percentage reported that the employer pays up to a certain amount toward the process and the employee covers the balance.
5. When asked about the source of immigration-related costs, the largest percentage (over 90%) reported that the business unit hiring the employee pays for the process.  A few respondents reported situations where the legal or human resources department pay.
6. Responses varied with respect to reimbursement policy.  An equal number of ABIL members reported that their corporate clients had no reimbursement policy as those who reported that their clients had such a policy (where the employee agrees to repay a portion of the costs of sponsorship if the employee leaves the company within a certain time frame after receiving the green card).

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

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

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

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5. ABIL Global: Germany

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

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

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

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

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

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

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

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6. New Publications and Items of Interest

SEVIS report on international students in the United States. The Student and Exchange Visitor Program (SEVP) has released “SEVIS by the Numbers,” a quarterly report of international students studying in the United States.  The report is based on data from the Student and Exchange Visitor Information System (SEVIS), a Web-based system that includes information on international students, exchange visitors, and their dependents while they are in the United States.

The report notes that as of April 1, 2014, almost 1.02 million international students were enrolled in nearly 9,000 U.S. schools on F (academic) or M (vocational) visas.  This marks a 2 percent increase from January.  Seventy-five percent of all international students were from Asia, with 29 percent from China.  Saudi Arabia and India had the greatest percentage increase of students studying in the United States at 10 and 8 percent, respectively, when compared to January statistics.  The top 10 countries of citizenship for international students were China, India, South Korea, Saudi Arabia, Canada, Japan, Taiwan, Vietnam, Mexico and Brazil.

The April report also includes statistics on STEM (science, technology, engineering, and mathematics) students.  Sixty-seven percent of international students studying STEM fields were male.  Forty-three percent of all international STEM students studied engineering.  Seventy-eight percent of international students from India studied STEM fields, while only eight percent of international students from Japan studied STEM fields.

Other key points from the report include: 77 percent of SEVP-certified schools had between 0 and 50 international students; 72 percent of international students were enrolled in bachelor’s, master’s, or doctoral programs; and California, New York, and Florida had the most SEVP-certified schools.  A school must be SEVP-certified before it can enroll international students.

REPORT

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.”

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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7. Member News

ABIL members have been appointed to the following American Immigration Lawyers Association committees:

• Vincent Lau is on the Department of Labor Liaison Committee.
• Sharon Mehlman will continue as the Vice Chair of the Verification and Worksite Enforcement Committee and will chair the 2015 Annual Conference committee (DC National Harbor).
• Bernard Wolfsdorf has been re-appointed to the EB-5 Committee.
• Stephen Yale-Loehr has been re-appointed to the Business Immigration Committee.

Several ABIL members will speak at the upcoming American Immigration Lawyers Association Annual Conference to be held June 18-21, 2014, in Boston, Massachusetts (PROGRAM):

• Bryan Funai and Mr. Wolfsdorf will speak on E-1/E-2 Visas Treaty Rights and Wrongs.
• Kehrela Hodkinson will speak on What Business Immigration Attorneys Need to Know About Nonimmigrant Visa Inadmissibility Issues.
• H. Ronald Klasko will speak on Representing the Direct EB-5 Investor.
• Charles Kuck will speak on Expecting a Visitor: Lessons Learned from FDNS and USCIS Site Visits.
• Mr. Lau will speak on Hazard: Falling (PERM) Rocks Ahead.
• Ms. Mehlman will speak on What Would You Do? A Practical Discussion of Advanced and Challenging I-9 Issues.
• Cyrus Mehta will speak on Abandonment of Residence, Expatriation, and Renunciation of U.S. Citizenship.
• Angelo Paparelli will speak on Top Mistakes in Employment-Based Practice, Version 2014.
• Mr. Wolfsdorf will present the keynote address on Bringing Economic Liberty and Certainty to Global Migration at the AILA Global Migration Spirit of Boston Sunset Networking Dinner Cruise on June 17, 2014.  He will also present an “EB-5 Investor’s Workshop” for the AILA New Members Division on June 19, 2014.

Klasko, Rulon, Stock & Seltzer, LLP has moved to 1601 Market Street #2600, Philadelphia, PA  19103; phone: (215) 825-8600.  For more information, see http://www.klaskolaw.com/.

Robert Loughran spoke on the future of America’s EB-5 program at the Global Residency and Citizenship Conference in Malta.

Mr. Paparelli has published a new blog entry.  “Immigration Voices: Dr. No vs. the League of Extraordinary Aliens”

Mr. Wolfsdorf will moderate a panel on June 17, 2014, at Harvard Law School celebrating the 30th anniversary of the Harvard Immigration and Refugee Clinical (HIRC) Program celebration.

Mr. Yale-Loehr will speak on I-829 issues at an EB-5 conference sponsored by ilw.com in Boston on Wednesday, June 18, 2014.  DETAILS AND REGISTRATION INFORMATION.

Mr. Yale-Loehr will speak at a luncheon panel sponsored by CanAm Enterprises, “The EB-5 Program: The Certainty of Unpredictability,” on Thursday, June 19, 2014, from noon to 1:15 pm at the Westin Copley Place in Boston.

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

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

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

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

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

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

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

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

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

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

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

• Whether the facility employed by the business appears to be the one described in the petition.
• Whether the inspector made contact with the signatory of the petition or a human resources representative or management point of contact who could answer questions about the petition filed and the visa holder.
• Whether the information in the petition is viable and whether the documents collected related to the presence of the organization as a business.
• Whether the inspector was able to interview the beneficiary.
• Whether the petition signatory, human resources representative, or manager interviewed had knowledge of the originally filed petition associated with the beneficiary.
• Whether the inspector found the beneficiary to be working for the organization cited in the petition.
• Whether the beneficiary was knowledgeable, forthcoming, and cooperative.
• Whether the beneficiary is being compensated with the salary indicated in the petition.
• Whether the beneficiary is performing the duties indicated in the petition.

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

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

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

ANNOUNCEMENT

ANNOUNCEMENT

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

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

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

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

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

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

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

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

This provision expires on September 30, 2014.  Accordingly, no staggered entry of H-2B workers after that date will be permitted, the Department said.

FAQ

The official attestation is available in PDF format on OFLC’s WEBSITE.

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4. State Dept. Updates Visa Reciprocity Table for Ukraine

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

RECENT UPDATES

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5. New Publications and Items of Interest

I-94 FAQ. U.S. Customs and Border Protection has released frequently asked questions (FAQ) on the Form I-94, Arrival/Departure Record.  The FAQ provides responses to questions on what records can be accessed, how SEVIS records are documented, how automation of the I-94 affects the I-9 employment verification process, and other issues.

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.”

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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6. Member News

The following ABIL members have been named to the Super Lawyers 2014 list:

Francis Chin
Steve Clark
Laura Danielson
Bryan Funai
Steve Garfinkel
Mark Ivener
H. Ronald Klasko
Charles Kuck
Robert Loughran
Sharon Mehlman
Cyrus Mehta
John Nahajzer
Angelo Paparelli
Julie Pearl
William Reich
Bernard Wolfsdorf
Stephen Yale-Loehr

The following ABIL members are included in The International Who’s Who of Corporate Immigration Lawyers 2014 and The International Who’s Who of Business Lawyers 2015:

ABIL U.S. members:
Francis Chin
Steve Clark
Laura Danielson

Rami Fakhoury

Bryan Funai 
Steve Garfinkel
Kehrela Hodkinson
Mark Ivener
H. Ronald Klasko
Charles Kuck
Robert Loughran
Sharon Mehlman
Cyrus Mehta
John Nahajzer
Angelo Paparelli
Julie Pearl
William Reich
Bernard Wolfsdorf
Stephen Yale-Loehr

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

Cyrus Mehta has published a new blog entry. “Immigrant Power: Naturalized American Wins Boston Marathon”

Mr. Mehta co-wrote a blog entry, “Will Kazarian Change the O-1 Visa?”

Angelo Paparelli has published a new blog entry.  “USCIS Gets an EB-5 Earful at Immigration Listening Session”

Bernard Wolfsdorf has received the Lawyer of the Year award for Corporate Immigration from Who’s Who Legal.

Mr. Wolfsdorf will be a keynote panelist with Charles Oppenheim of the Department of State at the 7th Annual IIUSA EB-5 Regional Center Advocacy Conference, to be held at the Hyatt Regency Hotel on Capitol Hill in Washington, DC, on May 7-9, 2014.  Mr. Wolfsdorf and Mr. Oppenheim will discuss “EB-5 Retrogression Predictions (and Consequences).”

Mr. Wolfsdorf will give a presentation on May 13, 2014, on raising capital for startups using EB-5 immigrant investor capital.  The event will take place from 6 to 9 p.m. at ROC-Santa Monica.

Stephen Yale-Loehr was quoted by CNN in an article on immigration reform prospects published on April 21, 2014.  “If I had to predict, I think the president will make some administrative fine tuning of his immigration policies in the hopes of pacifying the immigration activists,” he said.  Mr. Yale-Loehr also observed that late spring and summer “might open a small window of time for Republicans to act.  If the primaries in spring and summer show immigration is not that big an issue with activists, then Republicans will feel they can go out on the limb and support reform.”

Mr. Yale-Loehr has posted his first blog entry, on EB-5 visa retrogression issues.  “State Department Warns That EB-5 Category May Retrogress This Summer”

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

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

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

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

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

6. Pro Bono Success Story: Miller Mayer – With this issue, we inaugurate a new feature: pro bono success stories from Alliance of Business Immigration Lawyers firms. Our first story is from Miller Mayer, an ABIL member firm in Ithaca, New York.

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

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links

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Details:

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

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

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

USCIS anticipates receiving more than enough petitions to reach both caps by April 7. The agency said it will use a random selection process to meet the numerical limit. Non-duplicate petitions that are not selected will be rejected and returned with the filing fees.

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

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

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

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

USCIS ANNOUNCEMENT

INFORMATION ON PREMIUM PROCESSING

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

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

The ACA website provides a long list of documents that can be used to show immigration status.

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

• Lawful permanent resident (LPR/green card holder)
• Asylee
• Refugee
• Cuban/Haitian entrant
• Paroled into the U.S.
• Conditional entrant granted before 1980
• Battered spouse, child, or parent
• Victim of trafficking and his or her spouse, child, sibling, or parent
• Granted withholding of deportation or withholding of removal, under the immigration laws or under the Convention Against Torture (CAT)
• Individual with nonimmigrant status (including worker visas, student visas, and citizens of Micronesia, the Marshall Islands, and Palau)
• Temporary Protected Status (TPS)
• Deferred Enforced Departure (DED)
• Deferred Action Status (Deferred Action for Childhood Arrivals (DACA) isn’t an eligible immigration status for applying for health coverage)
• Applicant for:
• –    Special Immigrant Juvenile Status
• –    Adjustment to LPR status with an approved visa petition
• –    Victim of trafficking visa
• –    Asylum who has either been granted employment authorization, OR is under 14 and has had an application for asylum pending for at least 180 days)
• –    Withholding of deportation or withholding of removal, under the immigration laws or under the Convention Against Torture (CAT) who has either been granted employment authorization, OR is under 14 and has had an application for withholding of deportation or withholding removal under the immigration laws or under the CAT pending for at least 180 days)
• Certain individuals with an employment authorization document:
• –    Registry applicants
• –    Order of supervision
• –    Applicant for cancellation of removal or suspension of deportation
• –    Applicant for legalization under IRCA
• –    Applicant for TPS
• –    Legalization under the LIFE Act
• Lawful temporary resident
• Granted an administrative stay of removal by the Department of Homeland Security
• Member of a federally recognized Indian tribe or American Indian born in Canada
• Resident of American Samoa

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

U.S. Residents Living Abroad

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

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

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

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

Penalty for Failure to Maintain Minimum Essential Coverage

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

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

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

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

MORE INFORMATION

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3. USCIS Holds Teleconference With EB-5 Stakeholders

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

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

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

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

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

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

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

LIST OF EB-5 REGIONAL CENTERS BY STATE

This article is based on multiple reports; USCIS has not yet released a summary of the teleconference.

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

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

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

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

RELATED CABLE, which includes additional information about applicable dates and other facts.

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5. Hockeytown-Hockey Country Debacle Heats Up

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

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

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

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

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6. Pro Bono Success Story: Miller Mayer

Miller Mayer recently received good news regarding a pro bono case that has spanned over two years. In a happy collaboration between our firm’s litigation and immigration groups, and with the generous help of the Buffalo, New York, district immigration office and immigration court, a 47-year-old mentally handicapped Canadian citizen gained legal immigration status and public benefits support for the first time in his life. This support came just in time, as his mother, upon whom he has depended his entire life, is ill with cancer. Our local hospital’s “nurse navigator” acted as the go-between for our firm and a deserving, undocumented family that has been living in our area since 1972. The immigration agency assisted in gently apprehending the handicapped client in our office so that he could apply for a green card in immigration court. The immigration court assisted in kindly arranging a telephonic hearing, thereby not necessitating the handicapped man’s physical presence. And the Social Security Administration, after initially denying the man’s benefits application, was finally compelled by our litigation associate to review and approve the benefits request without a hearing. After many years without health insurance, vocational, or any kind of state support, this family has peace of mind that their handicapped brother will not be left alone when his mother becomes unable to care for him.
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7. ABIL Global: Canada

Canada plans to close the federal Investor Program.

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

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

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

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

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

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

In its backgrounder, CIC explained:

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

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

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

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

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

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

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8. New Publications and Items of Interest

ACA resources. The National Immigration Law Center (NILC) has released webinar recordings and NILC has posted general resources on health care issues for immigrants.

Ombudsman recommendations on work eligibility for Conrad 30 spouses. On March 24, 2014, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman released recommendations on employment eligibility for spouses of foreign medical doctors accepted into the Conrad 30 program. Under this program, each state may receive up to 30 physicians each year to provide medical services to rural, inner city, and other medically underserved communities. USCIS currently does not permit spouses to change to an employment-authorized nonimmigrant status, even where the dependent independently qualifies for such status.

OSC antidiscrimination posters. The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) announced that its antidiscrimination poster is now available in additional languages. OSC has published translations of its poster in Arabic, Chinese, French, Haitian Creole, Korean, Russian, Spanish, Tagalog, and Vietnamese.

These translations are available on OSC’s worker information page and employer information page.

Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

 

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.’

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.

Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.hahn@lexisnexis.com.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL Blog.

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9. Member News

The following ABIL members and firms are included in the Chambers Global Rankings for Business Immigration:

INDIVIDUALS
Mark Ivener
H. Ronald Klasko
Charles Kuck
Sharon Mehlman
Cyrus Mehta
Angelo Paparelli
Julie Pearl
Bernard Wolfsdorf
Stephen Yale-Loehr

FIRMS
Bener Consultancy
FosterQuan, LLP
Ivener & Fullmer LLP
Klasko, Rulon, Stock & Seltzer, LLP
Laura Devine Solicitors
Pearl Law Group
Seyfarth Shaw, LLP
Veirano Advogados
Wolfsdorf Immigration Law Group

Laura Devine and Nicolas Rollason are listed in the United Kingdom rankings and Isa Soter is listed in the Latin American rankings.

Cyrus Mehta chaired the PLI Immigration Basics 2014 seminar on March 13, 2014. WEBCAST

Julie Pearl co-presented at the annual conference of the Arizona Relocation Alliance (ARA) on March 21, 2014, in Phoenix, Arizona, on global business traveler compliance.

Bernard Wolfsdorf, Founding Partner of Wolfsdorf Rosenthal LLP, has been named Corporate Immigration Lawyer of the Year for 2014 by Who’s Who Legal for the fifth consecutive year. Mr. Wolfsdorf received this distinction after garnering the most votes from over 500 of the top-rated immigration lawyers in the world.

Mr. Wolfsdorf was recently quoted on CNNMoney in an article on a dramatic surge in Chinese applicants for the EB-5 program. “The program has literally taken off to the point [that] in China, the minute anybody hears I’m an immigration lawyer, the first thing they say is, ‘Can we get an EB-5 visa?’ ” “There is a panic being created in China about the demand [getting] so big that there is going to be a visa waiting line,” he said.

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10. 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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