Headlines:

1. State Dept. Announces J-1 On-Site Inspections – DOS plans to conduct on-site inspections of J-1 internships and training programs.

2. State Dept. Predicts Visa Availability in the Coming Months; Visa Bulletin Moved – The Department of State’s Visa Office has estimated visa availability in the coming months. Also, DOS has reorganized its website, moving the Visa Bulletin.

3. DOL Adds Q&A to FAQ Re Notification and Consideration of Laid-Off U.S. Workers for PERM Labor Certification Applications – An employer must make a reasonable, good-faith effort to notify each potentially qualified U.S. worker who has been laid off during the six months preceding a PERM application whenever a relevant job opening exists, and invite the worker to apply.

4. USCIS Releases Fact Sheet on Correcting Immigration Records After E-Verify Tentative Nonconfirmations – Correcting inaccuracies in immigration records can prevent future TNCs.

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

---

Details:

1. State Dept. Announces J-1 On-Site Inspections

The Department of State recently emailed J-1 exchange visitor sponsors to announce that it plans to conduct on-site inspections of J-1 internships and training programs. The visits may be both planned and unannounced. J-1 inspectors may want to speak with responsible officers, supervisors, employees, trainees, and interns, and to inspect facilities, housing, and health insurance arrangements. Inspectors also may review signed Forms DS-7002, Training/Internship Placement Plan, for interns or trainees.

The Alliance of Business Immigration Lawyers (ABIL) recommends that clients contact their ABIL attorneys for advice in specific situations.

Back to Top

---

2. State Dept. Predicts Visa Availability in the Coming Months; Visa Bulletin Moved

Visa availability. In the Visa Bulletin for March 2014, the Department of State’s Visa Office makes the following estimates of visa availability in the coming months:

EMPLOYMENT-based categories (potential monthly movement)

Employment First: Current

Employment Second:

Worldwide: Current

China: Three to five weeks

India: No forward movement

Employment Third:

Worldwide: This cut-off date has been advanced over four and one half years since last spring in an effort to generate new demand. After such a rapid advance of a cut-off date applicant demand for number use, particularly for adjustment of status cases, can be expected to increase significantly. Once such demand begins to materialize at a greater rate it could have a significant impact on this cut-off date situation. Little if any forward movement of this cut-off date is likely during the next few months.

China: Will remain at the worldwide date

India: Little if any movement

Mexico: Will remain at the worldwide date

Philippines: Three to six weeks

Employment Fourth: Current

Employment Fifth: Current

The above projections for the…Employment categories are for what is likely to happen during each of the next several months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that “corrective” action will not be required at some point in an effort to maintain number use within the applicable annual limits. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables. Unless indicated, those categories with a “Current” projection will remain so for the foreseeable future.

VISA BULLETIN FOR MARCH 2014

Visa Bulletin moved. The Department of State has redesigned and reorganized its website at http://www.travel.state.gov. The Visa Bulletin is now found under “Law and Policy” in the Visas section of the website. Visitors to the website have several ways to access the Visa Bulletin.

From the homepage:

• Click on the link for usvisas.state.gov, located on the upper right side of the main graphic, or the link “U.S. Visas” located at the bottom of the page. These links will take you to the Visas section of the website.
• Once in the Visas section, scroll down the page to the “We Want You to Know” section.
• Click on the icon, “Check the Visa Bulletin,” or click on the link for the Visa Bulletin in the Law and Policy box.
• Alternately, once in the Visas section of the website, hover over the “Immigrate” icon along the top of the page. A drop-down menu will appear with a link to the Visa Bulletin.

Back to Top

---

3. DOL Adds Q&A to FAQ Re Notification and Consideration of Laid-Off U.S. Workers for PERM Labor Certification Applications

The Department of Labor’s Employment and Training Administration has added a new question and answer (Q&A) to its frequently asked questions (FAQ). The new Q&A concerns notification and consideration of laid-off U.S. workers for PERM labor certification applications.

The new Q&A asks, “How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ETA Form 9089?” The answer notes that some employers have misconstrued the regulations to require only that they inform workers when laid off that the employer may have future positions and inviting the worker to monitor the employer’s job postings and apply, rather than their actively notifying and considering the laid-off workers. In fact, the Q&A notes, misapplication of the regulatory requirements will result in denial of a PERM application. The employer must make a reasonable, good-faith effort to notify each potentially qualified worker who has been laid off during the six months preceding the application whenever a relevant job opening exists and invite the worker to apply.

The Q&A notes that an employer who files multiple labor certifications can satisfy its responsibilities under the relevant regulation by notifying each laid-off worker (in the manner chosen by the worker) at least once a month that a list of current relevant job openings is maintained electronically on a website operated by the employer. “Simply informing a laid-off worker to monitor the employer’s website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer’s regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity,” the Q&A states.

The Q&A adds that an employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, Web pages (including those listing details of the relevant job openings and applications by laid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.

NEW Q&A

Back to Top

---

4. USCIS Releases Fact Sheet on Correcting Immigration Records After E-Verify Tentative Nonconfirmations

U.S. Citizenship and Immigration Services (USCIS) has released a fact sheet on how to correct immigration records after resolving a Tentative Nonconfirmation (TNC) in E-Verify. USCIS noted that an employer may receive a TNC because immigration records are inaccurate. Correcting them can prevent future TNCs.

FACT SHEET, which includes several ways immigration records can be corrected

Back to Top

---

5. New Publications and Items of Interest

DHS OIG report on ensuring that H-1B, L-1 employers pay applicable border security fees. The Department of Homeland Security’s Office of Inspector General (OIG) has published a report, “USCIS Controls To Ensure Employers Sponsoring H-1B and L-1 Employees Pay Applicable Border Security Fee.” Employers must pay a border security fee of up to $2,250 per petition if they have 50 or more employees in the United States, and if their workforce consists of 50 percent or more H-1B or L-1 nonimmigrant workers. OIG audited USCIS’s foreign worker petition process to determine whether employers comply with the fee requirement. Based on its review of 203 petitions for foreign workers, OIG determined that employers typically paid the fee when required. However, 3 percent of the random petitions and 21 percent of the petitions OIG selected “judgmentally based on select characteristics” contained errors that the agency believed could be prevented if USCIS made improvements to its fee collection process. OIG said USCIS needs to implement processes to scrutinize information employers provide to ensure that they pay the proper fees. Some USCIS officers already verify information employers provide regarding their workforce to ensure that the proper fees are collected, but OIG found that this practice was inconsistent across USCIS because there was no requirement that officers do so. Without verification, an employer’s declaration was typically the sole basis for determining whether the employer was required to pay the border security fee.

OIG recommended that USCIS electronically capture employer information regarding the number of employees for analysis and comparison. OIG also recommended that USCIS implement procedures to identify employers who pay fees inconsistently, expand the use of readily available resources to assess the reasonableness of employer-provided information, and conduct further analysis to determine whether an average of 30 minutes was the appropriate amount of time to adjudicate H-1B and L-1 petitions. USCIS generally concurred with these recommendations.

OIG REPORT

DHS OIG report on ICE’s worksite enforcement administrative inspection process. The Department of Homeland Security’s Office of Inspector General (OIG) has published a report, “U.S. Immigration and Customs Enforcement’s Worksite Enforcement Administrative Inspection Process.” OIG found that generally, ICE’s worksite enforcement administrative inspection process met the requirements of the Immigration Reform and Control Act of 1986. However, OIG said, ICE’s Homeland Security Investigations directorate has not adequately monitored or evaluated the performance or outcomes of implementing its administrative inspection process through the worksite enforcement strategy. Specifically, ICE’s Homeland Security Investigations headquarters did not adequately oversee the field offices to ensure that they were consistent in issuing warnings and fines, and some field offices issued significantly more warnings than fines. The directorate also negotiated fines with employers, in some cases substantially reducing the amounts. OIG said that Homeland Security Investigations’ inconsistent implementation of the administrative inspection process, plus the reduction of fines, may have hindered its mission to prevent or deter employers from violating immigration laws. OIG made recommendations to improve ICE’s implementation of its worksite enforcement strategy through the administrative inspection process.

OIG REPORT

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.

Back to Top

---

6. Member News

H. Ronald Klasko, Bernard Wolfsdorf, and Stephen Yale-Loehr will speak about the EB-5 immigrant investor program at the Invest in America Summit on March 22-23, 2014, at the Jing An Shangri-la Hotel in Shanghai, China.

Mr. Klasko recently published several blog entries. “Chinese EB-5 Quota Retrogression – Part 2” “FAQs on EB-5 Quota Backlog”

Cyrus Mehta has published a new blog entry. “DOL Policy on Laid-Off U.S. Workers for PERM Labor Certification Applications”

Mr. Yale-Loehr was quoted on February 25, 2014, in an article on USNews.com about deportations under the Obama administration. He noted that the executive branch has wider discretion than the White House admits with respect to deportations. He said that stopping deportations would be a political risk that the president doesn’t want to take. “He has wide legal authority, but you have to balance that against the will of the people and politically what you can get through Congress if you push your executive authority too far,” he said.

Back to Top

---

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

Back to Top

Headlines:

1. USCIS Expands Site Visits To Review of L-1 Petitions – The agency is reviewing extensions of L-1 petitions and L-1 job duties and salaries to determine whether they are consistent with the L-1’s classification.

2. H-1B Alert: Filing Starts April 1 for Next Fiscal Year – This past fiscal year, H-1B numbers were exhausted within the first five days of filing. The Alliance of Business Immigration Lawyers (ABIL) anticipates that the numbers will run out quickly again this year.

3. Half a Million Companies Now Participate in E-Verify, USCIS Announces – E-Verify has experienced significant growth.

4. USCIS Adds Countries to Participation in H-2A and H-2B Programs – Austria, Italy, Panama, and Thailand have been added to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs.

5. Federal Judge Rules in Favor of Stanford Student on ‘No-Fly’ List – After a long legal battle, a federal judge ruled that a Malaysian Stanford student is entitled by due process to a remedy that requires the government to “cleanse and/or correct” its lists and records of mistaken information.

6. ABIL Global: Australia – The Australian government has revised labor market testing requirements in the 457 visa program.

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

8. Member News – Member News

9. Government Agency Links – Government Agency Links

---

Details:

1. USCIS Expands Site Visits To Review of L-1 Petitions

USCIS’s Fraud Detection and National Security (FDNS) Directorate has expanded its employer site visits to include review of L-1 post-adjudication petitions. Recent reports indicate that the agency is reviewing extensions of L-1 petitions and L-1 job duties and salaries to determine whether they are consistent with the L-1’s classification as an executive or manager (L-1A) or specialized knowledge worker (L-1B).

USCIS may conduct announced or unannounced site visits as part of the visa petition process. Employers have been reporting that the FDNS inspectors’ queries are similar to those made in H-1B site visits, particularly about whether wages are appropriate for the visa application, visa category, work location, hours, job duties, title, and experience of the employee. The employee may be questioned directly about his or her job duties.

FDNS’s site visits are funded by the $500 anti-fraud fee paid with H-1B and L-1 petitions. Until recently, such compliance audits have primarily involved H-1B employers. More than 17,000 such visits occurred in FY 2011, which was an increase over 2010.

USCIS’s Office of Inspector General in August recommended, among other things, that USCIS make a site visit a requirement before extending a one-year new office L-1 petition. USCIS concurred and said it expected to begin conducting post-adjudication domestic L-1 compliance site visits in FY 2014.

REPORT

Back to Top

---

2. H-1B Alert: Filing Starts April 1 for Next Fiscal Year

Congress sets a limit on the number of H-1B visas available each year. This past fiscal year, H-1B numbers were exhausted within the first five days of filing. The Alliance of Business Immigration Lawyers (ABIL) anticipates that the numbers will run out quickly again this year.

If U.S. Citizenship and Immigration Services (USCIS) receives more petitions than it can accept, it will use a lottery system to randomly select the number of petitions filed during that period to reach the numerical limit. USCIS did this last year. The agency will reject petitions that are subject to the cap but not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.

Every time an employer hires an individual for a specialty occupation, an H-1B number must be available. (An exception arises where the individual is already with another employer in H-1B status, but this employer cannot be a university/college or a nonprofit government research organization.) When numbers run out, the employer must wait until the next fiscal year to file for an H-1B. In some cases, there may be no other nonimmigrant visa option for the individual and the individual may have to leave the U.S. or, at least, not be able to work for the employer until a year later.

While the H-1B numbers for the next fiscal year do not become available again until October 1, 2014, employers may file petitions to request numbers as early as six months in advance, beginning on April 1, 2014. That date signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached. The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (master’s or higher) from a U.S. university.

As in past years, some foreign nationals are not subject to the H-1B cap, including individuals who already have been counted toward the cap in a previous year and have not been outside the United States subsequently for one year or more. Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities are exempt from the H-1B cap. All other employers should be aware of the H-1B cap.

ABIL encourages employers to review their hiring needs and determine whether they should initiate H-1B processing for anticipated hires, or even recent hires in other nonimmigrant status now.

You should consider filing an H-1B petition this April if:

• You want to hire an individual who is not in H-1B status already.
• You are hiring an individual who is already in H-1B status but is currently employed with a college/university (this situation requires a new H-1B number).
• You are hiring an individual who is already in H-1B status but is with a nonprofit government research organization (this situation requires a new H-1B number).
• Your employee is in F-1 student status.
• Your employee is in L-1B status and is considering seeking legal permanent residence in the United States.
• Your employee is in another nonimmigrant status and may want to seek legal permanent residence in the United States.

ABIL recommends that clients keep their ABIL attorney apprised of all new hires needing H-1B status before October 1, 2014. Examples would include F-1 students hired with optional practical training that expires before April 1, 2014, or current L-1B nonimmigrants who will have spent five years in that status as of any date before October 1, 2014. Contact your ABIL attorney now if you have any questions or would like to file an H-1B petition.

Back to Top

---

3. Half a Million Companies Now Participate in E-Verify, USCIS Announces

U.S. Citizenship and Immigration Services (USCIS) announced on January 23, 2014, that more than 500,000 companies now use E-Verify. Employers use the online E-Verify system to check an employee’s work authorization status. USCIS said that 98.8 percent of work-authorized employees are confirmed “instantly or within 24 hours, requiring no further employee or employer action.”

USCIS noted that its efforts to enhance the system’s security include agreements with select states’ departments of motor vehicles to ensure the authenticity of driver’s licenses that employees use as identity documents; Self Check, which allows workers to look up their own employment eligibility status and correct their records before they seek employment; and a program that locks Social Security numbers suspected of being misused for employment eligibility verification.

E-Verify has experienced significant growth since its establishment in 1996. Annual enrollments increased tenfold during the program’s first 16 years, from 11,474 in fiscal year (FY) 1996 to 111,671 in FY 2012. During FY 2013, employers used E-Verify more than 25 million times.

To commemorate the half-million-participant milestone, USCIS released “E-Verify for Business Leaders,” a video that introduces the program to prospective users. USCIS also updated its E-Verify website with “plain-language” content and easy-to-follow graphics.

ANNOUNCEMENT

VIDEO

WEBSITE

Back to Top

---

4. USCIS Adds Countries to Participation in H-2A and H-2B Programs

U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security, in consultation with the Department of State, has added Austria, Italy, Panama, and Thailand to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year.

The notice listing the 63 eligible countries was published January 17, 2014, in the Federal Register.

Back to Top

---

5. Federal Judge Rules in Favor of Stanford Student on ‘No-Fly’ List

U.S. District Judge William Alsup of San Francisco, California, recently ruled that a Malaysian Stanford student’s legal rights were violated because she was wrongly put on the “no-fly” list nine years ago. The judge noted that the “government concedes that the plaintiff is not a threat to national security.” He said she is “entitled by due process to a … remedy that requires the government to cleanse and/or correct its lists and records of the mistaken information.”

Rahinah Ibrahim attempted to board a flight in 2005 to Hawaii from San Francisco International Airport, but was told she was on the no-fly list. After a two-hour ordeal at the airport, during which she was questioned and denied any connection to terrorism, an agent of the Department of Homeland Security told her that her name had been removed from the no-fly list and she was free to fly to Hawaii. She then flew from Hawaii for a visit home to Malaysia. But when she tried to return via Kuala Lumpur International Airport two months later, she was stopped and the U.S. Embassy said her U.S. student visa was cancelled due to a suspected connection to terrorism. An eight-year legal battle followed, during which she was unable to return to the United States. She finished her Stanford education remotely.

Her attorneys filed suit seven years ago against several agencies, including the Federal Bureau of Investigation and the Department of Homeland Security. Government attorneys have been secretive, citing national security issues, Judge Alsup noted, and it was difficult to gain access to information. “It has gone so far as even to redact from its table of authorities some of the reported case law on which it relies! This is too hard to swallow,” Judge Alsup noted.

The American Civil Liberties Union has filed suit in a similar case, representing 13 U.S. citizens who were blocked from air travel after a failed bombing attempt on Christmas Day 2009. The 13 citizens were not told why they were blocked or how to remove their names from the list. ACLU attorney Nusrat Choudhury said, “The Constitution prohibits the government from smearing people as suspected terrorists due to an entirely secret process, then not giving them a fair chance to defend themselves.”

BACKGROUND ON THE IBRAHIM CASE AND SIMILAR CASES

Back to Top

---

6. ABIL Global: Australia

In June 2013, the previous government of Australia decided to undo decades of progressive reform and introduce Labour Market Testing (LMT) into the 457 program. That government was defeated in September 2013 and the new government has substantially watered down the LMT regime with amendments passed on November 23.

The subclass 457 visa is the most commonly used visa to sponsor overseas skilled workers to work in Australia temporarily. Subclass 457 is uncapped and driven by employer demand. This generally means that employers will sponsor overseas workers more in times of high economic growth and low unemployment.

An application for approval of sponsorship must be accompanied by evidence in relation to LMT, unless the employer is exempt from doing so. Legislation specifies the manner in which such testing is to be carried out as well as the period in which LMT must have been undertaken. It also sets requirements relating to the sponsor’s attempts to recruit local labor. However, the November amendments provide for substantial exemptions from the LMT requirements.

The first such exemption provides that LMT is not required if it would be inconsistent with Australia’s international trade obligations, which fall into two categories:

• World Trade Organization General Agreement on Trade in Services (WTO-GATS) commitments
• Free trade agreement commitments

Consequently, sponsorship of citizens from WTO member countries would not require LMT. Similarly, intra-company transferees to Australia from a business established in a WTO country are exempt from LMT.

In addition to exemptions based on international trade agreements, sponsorship of executives and senior managers are exempt, as are specialists with two years of employment in Australia. Sponsors are also exempt from LMT for employees in positions that require tertiary qualifications. However, certain occupations cannot be exempted. The current list of occupations in that category includes a range of highly qualified engineers and nurses.

Finally, a sponsor may be exempt from LMT in the case of major disaster in Australia.

FACT SHEET ON THE 475 VISA

Back to Top

---

7. New Publications and Items of Interest

Immigration enforcement actions in FY 2012. The Department of Homeland Security has released “Immigration Enforcement Actions: 2012.” The report presents information on the apprehension, detention, return, and removal of foreign nationals in fiscal year 2012.

Key findings include:

• CBP determined that 194,000 foreign nationals were inadmissible.
• DHS apprehended 643,000 foreign nationals; 70 percent were citizens of Mexico.
• ICE detained approximately 478,000 foreign nationals, an all-time high.
• 230,000 foreign nationals were returned to their home countries without a removal order.
• DHS removed 419,000 foreign nationals from the United States. The leading countries of origin for those removed were Mexico, Guatemala, Honduras, and El Salvador.
• Expedited removal orders accounted for 163,000, or 39 percent, of all removals.
• Reinstatements of final orders accounted for 149,000, or 36 percent, of all removals.
• ICE removed 199,000 known criminal aliens from the United States, an all-time high.

REPORT

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.

 

Back to Top

---

8. Member News

Mark Ivener recently provided EB-5 immigration advice on due diligence. VIDEO

Charles Kuck spoke on Strategies for E-1 and E-2 Investors at the American Immigration Lawyers Association’s Mid-Year Conference in Grand Cayman on January 24, 2014.

Robert Loughran co-wrote a chapter and was a discussion leader on “Establishing New Office Intracompany Transfer Ls and the Path to Permanent Residency” at the American Immigration Lawyers Association’s Mid-Year Conference in Grand Cayman on January 24, 2014.

Mr. Loughran was quoted on January 9, 2014, by the Houston Chronicle on the impact of a December 31, 2013, federal court decision clarifying that neither probable cause nor reasonable suspicion was required for U.S. border agents to seize, inspect, and copy smartphones, laptops, tablets, or any other form of electronic device in the possession of an arriving traveler, including a U.S. citizen.

Cyrus Mehta has authored or co-authored several new blog entries. “GOP Principles on Immigration—A Path to Legal Status” “Top Ten Posts on the Insightful Immigration Blog in 2013” “One Step Forward, Two Steps Backwards: Immigration Benefits for Same Sex and Domestic Partners in India”

Angelo Paparelli has authored or co-authored several new blog entries. “Why Are Immigration Lawyers So Happy?” “Immigration Voices: Egads! I-9 Questions That Keep Me Up at Night”

Back to Top

---

9. Government Agency Links

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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

Back to Top

Headlines:

1. DHS OIG Report on EB-5 Regional Center Program Stirs Controversy – The Department of Homeland Security’s Office of Inspector General has released a controversial new report on the EB-5 regional center program that includes four recommendations.

2. OSC Reiterates That Employers May Not Institute a Hiring Preference for U.S. Citizens Unless Required To Do So – The OSC encourages employers considering a restriction on hiring based on citizenship status to ensure that it is properly restricting the position. Not to do so is to risk the imposition of sanctions, penalty fines, reporting requirements, and back pay.

3. OSC Clarifies I-9 Verification for Refugees, Asylees – The OSC clarified the application of documentation requirements related to I-9 work authorization verification for refugees and asylees.

4. DOL Postpones Action on Decision Vacating Supplemental Prevailing Wage Determinations – The DOL is postponing action on a decision vacating supplemental prevailing wage determinations issued in light of an interim final H-2B wage rule.

5. Philippines Requests TPS Designation – The government of the Philippines has asked the Obama administration to designate the Philippines for temporary protected status in the wake of Typhoon Yolanda/Haiyan.

6. SSA Updates Operations Manual Re Same-Sex Marriages in Foreign Jurisdictions – The SSA issued new instructions for obtaining legal opinions on the validity of foreign same-sex marriages in light of the Supreme Court decision in United States v. Windsor. The new instructions include policy, process, and procedures for processing same-sex marriage cases.

7. DHS, USCIS Personnel Changes Announced – The U.S. Senate confirmed the nomination of Alejandro Mayorkas to be Deputy Secretary of Homeland Security; the Obama administration nominated Leon Rodriguez to lead USCIS.

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

---

Details:

1. DHS OIG Report on EB-5 Regional Center Program Stirs Controversy

The Department of Homeland Security’s Office of Inspector General (OIG) has released a controversial new report on the EB-5 regional center program that includes four recommendations.

OIG report highlights. As background, Congress enacted the employment-based fifth preference (EB-5) green card category in 1990 to stimulate the U.S. economy through direct job creation and capital investment by foreign investors. Congress added a regional center pilot program to the EB-5 category in 1992 to pool investor money in a defined industry and geographic area to create both direct and indirect jobs.

An EB-5 investor must invest $500,000 if his or her investment is in a high unemployment area or a rural area. Otherwise the investor must invest $1 million. Each foreign investor must create or preserve at least 10 full-time jobs for qualifying U.S. workers within 2 years.

The OIG report notes several conditions that prevent U.S. Citizenship and Immigration Services (USCIS) from administering and managing the EB-5 regional center program effectively. First, the laws and regulations governing the program do not give USCIS authority to deny or terminate a regional center’s participation based on fraud or national security concerns; the program extends beyond the current USCIS mission. Second, USCIS is unable to demonstrate the benefits of foreign investment in the U.S. economy.

Additionally, the report notes, USCIS has difficulty ensuring the integrity of the regional center program. USCIS does not always ensure that regional centers meet all program eligibility requirements, and USCIS officials differently interpret and apply regulations and policies. Also, USCIS did not always document its decisions and responses to inquiries, making the program vulnerable to perceptions about internal and external influences.

As a result, the report states, USCIS is limited in its ability to prevent fraud and national security threats and cannot demonstrate that the program is improving the U.S. economy and creating jobs for U.S. citizens, as intended by Congress.

OIG recommends that USCIS: (1) update and clarify its regulations; (2) develop memoranda of understanding with the Departments of Commerce and Labor and the Securities and Exchange Commission to provide expertise and involvement in the adjudication of applications and petitions for the EB-5 regional center program; (3) conduct comprehensive reviews to determine how EB-5 funds have actually stimulated growth in the U.S. economy in accordance with the intent of the program; and (4) establish quality assurance steps to promote program integrity and ensure that regional centers comply with regulatory requirements.

Reaction. IIUSA, the industry trade association that represents over 130 EB-5 regional centers that serve over 40 states and territories and account for over 95% of the capital flowing through the EB-5 regional center program, said it was “puzzled” by the OIG’s findings and conclusions. IIUSA said that many of the reforms the OIG identified as necessary were already underway, and that USCIS had refuted other criticisms in its response to the report.

For example, IIUSA noted that USCIS has created a new Immigrant Investor Program Office staffed by trained economists, experts in business and immigration law, and fraud and national security specialists, now led by a former director of the Treasury Department’s Financial Crimes Enforcement Network. USCIS plans for all EB-5 related adjudications to be relocated to this office over the next six months. IIUSA also noted that USCIS has clarified its guidance for adjudicators in a comprehensive EB-5 policy memorandum and has strengthened interagency relationships.

IIUSA said these and other rebuttals in the USCIS response “should raise significant questions about the credibility of the report,” which was “further undermined by the recent resignation of [Charles Edwards, DHS’s Acting Inspector General], who himself was under investigation.”

The OIG report notes that USCIS agreed with three of the four OIG recommendations. Details of the OIG’s analysis and USCIS’s response are included in the report, “United States Citizenship and Immigration Services’ Employment-Based Fifth Preference (EB-5) Regional Center Program,” OIG-14-19.

IIUSA’s STATEMENT IN RESPONSE TO THE REPORT

Back to Top

---

2. OSC Reiterates That Employers May Not Institute a Hiring Preference for U.S. Citizens Unless Required To Do So

In response to a query, Alberto Ruisanchez, Acting Deputy Special Counsel of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), reiterated that employers may not institute a hiring preference for U.S. citizens unless required to do so to comply with a law, regulation, executive order, or government contract. Individuals protected from citizenship status discrimination include U.S. citizens, lawful permanent residents, refugees, and asylees.

Mr. Ruisanchez said the OSC encourages employers considering a restriction on hiring based on citizenship status to ensure that it is properly restricting the position. Not to do so is to risk the imposition of sanctions, penalty fines, reporting requirements, and back pay.

Mr. Ruisanchez noted that the OSC cannot give an advisory opinion based on any particular set of facts. The query was from Gretta Rowold, Executive Director of Secure Research Operations for the University of Oklahoma’s Office of Legal Counsel. She told the OSC that the university negotiates sponsored research agreements with non-university parties and periodically is asked to restrict participants to U.S. citizens only, and that the organizations sponsoring the research in some cases are unwilling or unable to provide justification for the requirement other than stating that the organization does sensitive work, or has a U.S. government customer who wouldn’t like it if non-U.S. citizens were involved in their projects. She asked the OSC what exposure the university might have under the law, and what type of justification or documentation is appropriate to protect the university against liability.

OSC’s RESPONSE LETTER, sent on November 20, 2013.

Back to Top

---

3. OSC Clarifies I-9 Verification for Refugees, Asylees

In response to a query, Seema Nanda, Deputy Special Counsel of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), clarified the application of documentation requirements related to Form I-9 work authorization verification for refugees and asylees. Eileen Scofield of Alston & Byrd asked what steps employers should take when an asylee or refugee worker presents for initial I-9 verification purposes a Form I-766, employment authorization document (EAD), that subsequently expires, considering the fact that asylees and refugees have unrestricted work authorization.

Ms. Nanda noted that when completing the I-9, a worker must select a box in Section 1 indicating his or her status. The selection applicable to “refugees and asylees—alien authorized to work” has a field that requests “expiration date, if applicable.” The I-9 instructions provide that refugees or asylees may write “N/A” in the space provided for the expiration date in Section 1. After employees complete Section 1, they must present documents evidencing identity and employment eligibility for the employer to complete Section 2. USCIS guidance provides that refugee and asylee workers are not required to present an EAD for Section 2 to complete the I-9. They may choose to present other documents, such as a driver’s license (List B) and unrestricted Social Security card (List C), to satisfy the I-9 requirements. The I-9 instructions further provide that reverification of a worker’s employment authorization does not apply to refugees and asylees “unless they chose to present evidence of employment authorization in Section 2 that contains an expiration date and requires reverification, such as Form 1-766, Employment Authorization Document.” Thus, Ms. Nanda said, an employer that reverifies the employment authorization of an asylee or refugee who originally presented an EAD upon the EAD’s expiration is following USCIS guidance. OSC therefore would be “unlikely to find a violation of the anti-discrimination provision unless the employer somehow acted in a discriminatory manner based on national origin or citizenship status,” Ms. Nanda said.

Ms. Scofield also asked about refugee and asylee workers who are unable to present a new unexpired EAD by the date of expiration of their originally presented EAD. Ms. Nanda responded that for reverification, an employee may present unexpired documentation from either List A or List C showing he or she is still authorized to work. Employers cannot require the employee to present a List A document. Thus, she noted that a refugee or asylee who originally presented an EAD could, for example, present an unrestricted Social Security card at reverification. Furthermore, the receipt rule would allow a worker to present a receipt for a lost, stolen, or misplaced document for reverification purposes. To the extent an employer requires an employee to present a specific document, such as an unexpired EAD, for reverification purposes, it may violate the anti-discrimination provision’s prohibition against document abuse, Ms. Nanda warned.

OSC’s RESPONSE LETTER, which was sent on September 25, 2013.

Back to Top

---

4. DOL Postpones Action on Decision Vacating Supplemental Prevailing Wage Determinations

The Department of Labor (DOL) announced on December 20, 2013, that it is postponing action on a decision vacating supplemental prevailing wage determinations issued in light of an interim final H-2B wage rule.

On December 3, 2013, the Board of Alien Labor Certification Appeals (BALCA) issued an en banc decision in Matter of Island Holdings LLC (2013-PWD-00002). That decision vacated the supplemental prevailing wage determinations issued in light of the DOL’s interim final H-2B wage rule (78 Fed. Reg. 24047, Apr. 24, 2013). A class action complaint has been filed in the district court in the Eastern District of Pennsylvania, challenging the Island Holdingsdecision, CATA v. Perez, 13-CV-07213.

The DOL’s Office of Foreign Labor Certifications (OFLC) said that after a full review of the Island Holdings decision and the district court complaint, the DOL has decided to postpone action on the Island Holdings decision pending judicial review. “This action is in the interest of justice, given the confusion and substantial disruption that would be created if the Department implemented the decision and it was subsequently overturned by the district court,” the OFLC noted. Accordingly, all OFLC actions related to the resolution of appeals in the supplemental prevailing wage decisions will be stayed pending the resolution of the district court action.

ANNOUNCEMENT

Back to Top

---

5. Philippines Requests TPS Designation

The government of the Philippines has asked the Obama administration to designate the Philippines for temporary protected status (TPS) in the wake of Typhoon Yolanda/Haiyan, which killed more than 6,000 people and displaced millions. The request was relayed to the Department of Homeland Security (DHS). Not only would this give an estimated 1 million Filipinos in the United States the opportunity to stay and work, but it would also allow them to send remittances back home. As of the date of publication of this newsletter, the DHS has not acted on the request.
Back to Top

---

6. SSA Updates Operations Manual Re Same-Sex Marriages in Foreign Jurisdictions

The Social Security Administration (SSA) has added a new section to its Program Operations Manual System (POMS) providing instructions for obtaining legal opinions on the validity of foreign same-sex marriages in light of the Supreme Court’s decision in United States v. Windsor. The new POMS instructions include policy, process, and procedures for processing same-sex marriage cases.

The SSA noted that under Windsor, the agency is no longer prohibited from recognizing same-sex marriages for purposes of determining benefits. Consequently, all claims filed on or after June 26, 2013, or that were pending final determination at the time of that decision are subject to Windsor instructions. The SSA said it is working with the Department of Justice to interpret the decision.

The new POMS instructions are available HERE, HERE and HERE.

DECISION IN UNITED STATES V. WINDSOR

Back to Top

---

7. DHS, USCIS Personnel Changes Announced

The U.S. Senate confirmed the nomination of Alejandro Mayorkas to be Deputy Secretary of Homeland Security on December 20, 2013, by a vote of 54-41. Mr. Mayorkas has been head of U.S. Citizenship and Immigration Services (USCIS) since 2009.

Meanwhile, the Obama administration nominated Leon Rodriguez to lead USCIS. Since 2011, Mr. Rodriguez has served as the Director of the Office for Civil Rights at the Department of Health and Human Services. From 2010 to 2011, he served as Chief of Staff and Deputy Assistant Attorney General for Civil Rights at the Department of Justice (DOJ). Previously, Mr. Rodriguez was County Attorney for Montgomery County, Maryland, from 2007 to 2010. He was a principal at Ober, Kaler, Grimes & Shriver in Washington, DC, from 2001 to 2007. He served in the U.S. Attorney’s Office for the Western District of Pennsylvania from 1997 to 2001, first as Chief of the White Collar Crimes Section from 1998 to 1999 and then as First Assistant U.S. Attorney until his departure. Before joining the U.S. Attorney’s Office, Mr. Rodriguez was a trial attorney in the DOJ’s Civil Rights Division from 1994 to 1997 and a Senior Assistant District Attorney at the Kings County District Attorney’s Office in New York from 1988 to 1994. He received a B.A. from Brown University and a J.D. from Boston College Law School.

WHITE HOUSE ANNOUNCEMENT FOR MR. RODRIGUEZ

MORE ON MR. MAYORKAS

Back to Top

---

8. New Publications and Items of Interest

Vote for Best and Worst: IMMI Awards. The “Nation of Immigrators” blog is preparing its annual list of the year’s best and worst in immigration policy and law. FOR DETAILS AND TO VOTE

EOIR launches Facebook page. The Executive Office for Immigration Review (EOIR) has opened a Facebook account to assist the agency in providing interested parties with information about news, events, and announcements through a second social media channel. EOIR’s website, will continue to be the agency’s primary source of information online. Receive EOIR updates by liking EOIR on Facebook and by continuing to follow @DOJ_EOIR on Twitter at follow @DOJ_EOIR.

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.

 

Back to Top

---

9. Member News

Kehrela Hodkinson was quoted in an article on U.S. visa questions in the November 20, 2013, edition of the Financial Times. She noted that clients are not always likely to answer incriminating questions on visa applications truthfully.

Charles Kuck has published a new blog entry. “Obama—Still the Deportation President”

Cyrus Mehta has authored or co-authored several new blog entries. “Top Ten Posts on the Insightful Immigration Blog in 2013” “One Step Forward, Two Steps Backwards: Immigration Benefits for Same Sex and Domestic Partners in India”

Angelo Paparelli has authored a new blog entry. “Immigration Triangulation—Another Dysfunctional Government Policy”

Mr. Paparelli has announced the 2013 Nation of Immigrator (“IMMI”) awards.

Bernard Wolfsdorf is the Program Chair for the American Immigration Lawyers Association’s Midyear Conference focusing on “Strategies in Advising Entrepreneur & Investor Visas,” to be held January 24, 2014, at the Westin Grand Cayman Seven Mile Beach Resort. Mr. Wolfsdorf will be the Discussion Leader on the EB-5 Essentials Panel.

Back to Top

---

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 pos

Back to Top

Headlines:

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

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

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

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

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

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

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

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

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

10. Member News – Member News

11. Government Agency Links – Government Agency Links

---

Details:

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

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

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

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

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

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

ANNOUNCEMENT

Back to Top

---

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

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

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

ANNOUNCEMENT

FREQUENTLY ASKED QUESTIONS about H-2A and H-2B signature requirements for electronically filed temporary labor certifications and the H classification supplement to the I-129

Back to Top

---

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

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

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

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

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

• Confirm that USCIS has designated the regional center. If you intend to invest through a regional center, check the list of current regional centers on USCIS’s website. If the regional center is not on the list, exercise extreme caution. Even if it is on the list, understand that USCIS has not endorsed the regional center or any of the investments it offers.
• Obtain copies of documents provided to USCIS. Regional centers must file an initial application (Form I-924) to obtain USCIS approval and designation, and must submit an information collection supplement (Form I-924A) at the end of every calendar year. Ask the regional center for copies of these forms and supporting documentation provided to USCIS.
• Request investment information in writing. Ask for a copy of the investment offering memorandum or private placement memorandum from the issuer. Examine it carefully and research similar projects in evaluating the proposal. Follow up with any questions you may have. If you do not understand the information in the document or the issuer is unwilling or unable to answer your questions to your satisfaction, do not invest.
• Ask if promoters are being paid. If there are supposedly unaffiliated consultants, lawyers, or agencies recommending or endorsing the investment, ask how much money or what type of benefits they expect to receive in connection with recommending the investment. Be skeptical of information from promoters that is inconsistent with the investment offering memorandum or private placement memorandum from the issuer.
• Seek independent verification. Confirm whether claims made about the investment are true. For example, if the investment involves construction of commercial real estate, check county records to see if the issuer has obtained the proper permits and whether state and local property tax assessments correspond with the values the regional center attributes to the property. If other companies have purportedly signed onto the project, go directly to those companies for confirmation.
• Examine structural risk. Understand that you may be investing in a new commercial enterprise that has no assets and has been established to loan funds to a company that will use the funds to develop projects. Carefully examine loan documents and offering statements to determine if the loan is secured by any collateral pledged to investors.
• Consider the developer’s incentives. EB-5 regional center principals and developers often make capital investments in the projects they manage. Recognize that if principals and developers do not make an equity investment in the project, their financial incentives may not be linked to the success of the project.
• Look for warning signs of fraud. Beware if you spot any of these hallmarks of fraud:
  –    Promises of a visa or becoming a lawful permanent resident. Investing through EB-5 makes you eligible to apply for a conditional visa, but there is no guarantee that USCIS will grant you a conditional visa or subsequently remove the conditions on your lawful permanent residency. USCIS carefully reviews each case and denies cases where eligibility rules are not met. Guarantees of the receipt or timing of a visa or green card are warning signs of fraud.
  –    Guaranteed investment returns or no investment risk. Money invested through EB-5 must be at risk for the purpose of generating a return. If you are guaranteed investment returns or told you will get back a portion of the money you invested, be suspicious.
  –    Overly consistent high investment returns. Investments tend to go up and down over time, particularly those that offer high returns. Be suspicious of an investment that claims to provide, or continues to generate, high rates of return regardless of overall market conditions.
• Unregistered investments. Even though a regional center may be designated as a regional center by USCIS, most new commercial enterprise investment opportunities offered through regional centers are not registered with the SEC or any state regulator. When an offering is unregistered, the issuer may not provide investors with access to key information about the company’s management, products, services, and finances that registration requires. In such circumstances, investors should obtain additional information about the company to help ensure that the investment opportunity is bona fide.
• Unlicensed sellers. Federal and state securities laws require investment professionals and their firms who offer and sell investments to be licensed or registered. Designation as a regional center does not satisfy this requirement. Many fraudulent investment schemes involve unlicensed individuals or unregistered firms.
• Layers of companies run by the same individuals. Some EB-5 regional center investments are structured through layers of different companies that are managed by the same individuals. In such circumstances, confirm that conflicts of interest have been fully disclosed and are minimized.

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

USCIS ALERT That page also has links to the alert in Chinese, Korean, and Spanish.

Back to Top

---

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

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

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

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

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

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

USCIS ANNOUNCEMENT

ADDITIONAL INFORMATION ON TYPES OF RELIEF

INFORMATION FROM US-CERT ON DISASTER-RELATED SCAMS

Back to Top

---

5. DHS Proposes SEVP Rule

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

PROPOSED RULE Comments are due by January 21, 2014.

 

Back to Top

---

6. USDA Postpones Release of 2014 AEWR Wage Data

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

DETAILS

Back to Top

---

7. DOL Publishes Three Final Rules Eliminating Obsolete OFLC Regulations

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

OFLC ANNOUNCEMENT

H-1A RULE

F-1 RULE

LOGGING RULE

Back to Top

---

8. ABIL Global: Turkey

The new Residence Permit Law will overhaul immigration in Turkey.

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

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

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

Residence Permits

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

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

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

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

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

Deportation and Ban on Reentry

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

Protection of Refugees and Victims of Human Trafficking

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

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

Back to Top

---

9. New Publications and Items of Interest

I-901 SEVIS fee payment video tutorial. The Student and Exchange Visitor Program has produced a video tutorial on the steps in the I-901 Student and Exchange Visitor Information System (SEVIS) fee payment process, including what information must be submitted and what to do once payment has been completed. VIDEO TUTORIAL

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.

Back to Top

---

10. Member News

Robert Loughran presented on Immigration Considerations in Renunciation of U.S. Citizenship at the 2013 Global Residence and Citizenship Conference in Miami, Florida, on November 21, 2013.

Mr. Loughran was selected as the Austin Immigration Law “Lawyer of the Year” for 2014 by Best Lawyers.

Mr. Loughran organized and spoke on EB-5 issues for attorneys and developers at an EB-5 Summit in Houston, Texas hosted by ILW on November 15, 2013. ADDITIONAL INFORMATION

Cyrus Mehta has co-authored a new blog entry. “Parole In Place: the Secret Sauce For Administrative Immigration Reform”

Angelo Paparelli has authored several new blog entries. “Parole-in-Place—The Immigration PIPsqueak That Could Help Solve the Biggest Obstacle to Comprehensive Reform” “The Immigration-Abandonment Ploy—Fallout from a Fiddling Congress and Bickering Allies”

Back to Top

---

11. 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

Back to Top

Headlines:

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

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

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

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

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

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

---

Details:

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

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

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

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

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

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

NOTICE

USCIS RELATED NOTICE

Back to Top

---

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

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

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

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

(1) the filing was due during the month of October 2013; and
(2) the BIA received the filing on or before November 1, 2013.

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

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

NOTICE

EOIR’s SEPTEMBER ZIP CODE CHANGE ANNOUNCEMENT

Back to Top

---

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

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

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

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

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

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

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

Back to Top

---

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

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

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

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

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

Additional details are available in USCIS’s GUIDANCE.

Back to Top

---

5. ABIL Global: Schengen Area

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

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

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

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

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

….

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

All amended articles with regard to the new 90-day rule took effect on October 18, 2013.
Regulation 610/2013 has also amended other rules, already effective as of July 19, 2013. One of these rules is article 5, para. 1(a) of the Schengen Borders Code, pursuant to which the short-term stay entry conditions relating to a valid travel document have been modified. Under the new rules, the required valid travel document not only must entitle the holder to cross the border, but also must (i) be valid “at least three months after the intended date of departure from the territory of the Member States” (this requirement may be waived in “a justified case of emergency”) and (ii) “have been issued within the previous 10 years.”

Back to Top

---

6. New Publications and Items of Interest

I-9 inspection overview. U.S. Immigration and Customs Enforcement (ICE) released a fact sheet, “Form I-9 Inspection Overview.” The fact sheet includes procedures ICE follows when conducting an I-9 inspection. The fact sheet notes, among other things, that monetary penalties for violations related to knowingly hiring and continuing to employ undocumented workers range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. Penalties for substantive violations, which include failing to produce an I-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, whether there was a good faith effort to comply, the seriousness of the violation, whether the violation involved unauthorized workers, and any history of previous violations.

FACT SHEET

A related fact sheet, “Worksite Enforcement”

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.

 

Back to Top

---

7. Member News

Several ABIL firms were included in the 2014 U.S. News—Best Lawyers “Best Law Firms” rankings:

• Ivener & Fullmer
• Klasko, Rulon, Stock & Seltzer, LLP
• Maggio + Kattar, P.C.
• Wolfsdorf Immigration Law Group

H. Ronald Klasko recently spoke on “Options for Developers Seeking Capital under the EB-5 Program” for EB-5 Investment Report Magazine‘s educational Dialogue Series webcast. Mr. Klasko discussed what a regional center is and how to create one, and also explained different investment models, differences between individual EB-5 and regional center EB-5, the USCIS application process, and more.

Sharon Mehlman spoke on “Negotiating With ICE” on October 22, 2013, at the Federal Bar Worksite Enforcement Conference in Chicago, Illinois.

Cyrus Mehta spoke on “U.S. Immigration and Tax Rules For Global Professionals” at the North American South Asian Bar Association’s (NASABA) Tax & Immigration Webinar, October 24, 2013.

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

Bernard Wolfsdorf will speak Wednesday, November 6, 2013, at the NAFSA Region XII Annual Conference on Visa Options for Entrepreneurial International Students in San Diego, California.

Mr. Wolfsdorf will speak on the Consular Update Panel on Thursday, November 7, 2013, at the NAFSA Region XII Annual Conference in San Diego.

Stephen Yale-Loehr spoke on a panel discussing when F-1 foreign students can and cannot legally work off-campus at the NAFSA Region X conferenceon Wednesday, October 30, 2013, in Atlantic City, New Jersey.

Mr. Yale-Loehr was quoted in an article about a family’s long wait for a green card, on October 27, 2013, on Syracuse.com. He noted that it usually takes more than a year for an overseas spouse to immigrate to the United States because of background and income checks. “It’s very hard to expedite that process. Partly why we have illegal immigration is because it’s so hard to immigrate legally.”

Mr. Yale-Loehr was quoted in an article about a record fine being imposed against an Indian company for visa violations. “This complaint and large settlement should be a wake-up call to all employers that the government is serious about enforcing the H-1B visa regulations,” he said. The article was published in the Wall Street Journal on October 29, 2013 and in the Wall Street Journal‘s MarketWatch on the same day.

Back to Top

---

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

Back to Top