Headlines:

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

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

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

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

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

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. Effects of Government Shutdown on Immigration Services Summarized

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

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

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

• Enroll any company in E-Verify
• Verify employment eligibility
• View or take action on any case
• Add, delete, or edit any User ID
• Reset passwords
• Edit company information
• Terminate an account
• Run reports
• View “Essential Resources“

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

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

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

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

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

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

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

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

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

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

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

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

Executive Office for Immigration Review: Immigration courts nationwide are continuing to adjudicate detained cases. Court functions that support the detained caseload will continue, but other functions are suspended. For specific information about a particular court, see HERE.

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

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

USCIS’s STATEMENT ABOUT THE E-VERIFY SHUTDOWN

SUMMARY OF DHS’s PLANS

DOL’s STATEMENT

DOL’s EMPLOYMENT AND TRAINING ADMINISTRATION ACTIVITIES

DEPARTMENT OF STATE’S INFORMATION ON THE SHUTDOWN

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

Back to Top

---

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

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

Nationals of the following countries are not eligible for DV-2015: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

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

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

Entries must be submitted ONLINE only once. Incomplete or duplicate entries will be disqualified. Entrants will need to check the status of their entries online at the same website beginning in May 2014.

INSTRUCTINOS FOR THE DV-2015 PROGRAM, which includes eligibility requirements and frequently asked questions.

DV-2014 entrants may check the status of their entries through Entrant Status Check through June 30, 2014.

Back to Top

---

3. Immigration Reform Languishes in Congress Amid Distractions

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

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

Back to Top

---

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

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

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

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

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

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

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

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

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

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

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

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

Back to Top

---

5. ABIL Global: Canada

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

New Québec Skilled Worker Program Requirements

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

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

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

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

More information on these changes and answers to frequently asked questions are available at the QUÉBEC MICC WEBSITE.

New Changes to the Work Permit Labour Market Opinion Application Process

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

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

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

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

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

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

The Federal Skilled Trades Program—Expedited Immigration Processing

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

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

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

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

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

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

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

Citizenship Law Changes

Citizenship Testing Procedures Amended

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

Citizenship Applications to be Separated for Approval

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

Government Hires More Citizenship Judges

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

New Citizenship Test Preparation Resource

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

Canadian Government is Aggressively Prosecuting Residence Fraud in Citizenship Cases

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

Back to Top

---

6. New Publications and Items of Interest

Toolkit for reducing child and forced labor. The U.S. Department of Labor’s Bureau of International Labor Affairs (ILAB) has launched “Reducing Child Labor and Forced Labor: A Toolkit for Responsible Businesses.” ILAB recommends that employers have a comprehensive and transparent social compliance system in place. The goal of this toolkit is to assist companies that may not have such a system, as well as companies whose existing systems may need strengthening, particularly in the areas of child labor and forced labor. ILAB says there are eight steps to an effective social compliance system: engage, assess, develop, communicate and train, monitor, remediate, review, and report. Before exploring these steps, ILAB recommends that businesses familiarize themselves with the basics of a “social compliance system.” The DOL notes that the International Labor Organization (ILO) estimates that there are 215 million children in child labor worldwide, 115 million of them in hazardous forms of work. It also estimates that 21 million people are in forced labor, 6 million of them children.

BASICS OF A SOCIAL COMPLIANCE SYSTEM

ILAB’s TOOLKIT

Global business immigration survey. In its newly released 2013 Annual Business Immigration Survey, the Global Immigration Benchmarking Council (GIBC) reports that business demand for temporary visas and green cards continues to rise. Thirty-four percent of companies anticipate hiring more H-1B visa holders in the year ahead, while 25 percent of companies anticipate hiring additional H-2A or H-2B workers. Respondents state that the projected increase is due to business demand and the unavailability of U.S. workers. The survey reflects responses from the business community across a variety of industries.

SURVEY HIGHLIGHTS, including additional findings

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.

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012. The writer, Saundra Amrhein, was nominated as a finalist on the short list for the 2011 Santa Fe Writers Project Literary Awards. Green Card Stories is also featured on National Public Radio’s photo blog.

For more information, e-mail Lauren Anderson at lauren@greencardstories.com. See also the Green Card Stories website.

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

Steve Clark will present on representing EB-5 immigrant investors at a Boston Bar Association CLE on October 1, 2013.

Charles Kuck has published a new blog entry. “Georgia Businesses and E-Verify—The Perfect Storm Has Arrived”

Sharon Mehlman presented an AILA webinar on “I-9 Compliance, Auditing & Settlements—Lessons from OCAHO” on September 24, 2013.

Ms. Mehlman presented an American Immigration Lawyers Association (AILA) webinar on “I-9 and E-Verify Compliance for Multi-State Employers” on September 10, 2013.

Ms. Mehlman presented an “Immigration Law Update” at the Balch & Bingham Employment Law Conference in Birmingham, Alabama, on September 13, 2013.

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

Angelo Paparelli has published a new blog entry. “The L-1 Intracompany Transferee Visa Facing Attack—From All Branches of the Federal Government (Part I)

Stephen Yale-Loehr was quoted in USA Today on September 27, 2013, in an article on immigration reform. “I think it’s the conventional wisdom that immigration reform is dead in the House. But I think there could still be a surprise.”

Mr. Yale-Loehr was quoted in BloombergBusinessweek, on September 24, 2013, in an article on immigration software. He noted that automated systems won’t necessarily help all applicants, because one of the things an immigration lawyer does is help clients choose from among the various avenues to a visa or green card. “A person may have more than one option to get a green card.”

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

Headlines:

1. DHS Inspector General Releases Report on Implementation of L-1 Visa Regulations – Among other things, the report says that more communication between the Departments of Homeland Security and State would improve the processing of blanket L-1 petitions.

2. Special Immigrant Visa Program for Iraqis Set To Expire – Individuals applying under this program, including family members, must be admitted to the United States or adjust their status before October 1, 2013.

3. BALCA Affirms Denial of Labor Cert for Technical Violation in Supervised Recruitment – An employer’s reference to resumes in the file instead of listing the addresses as required was a “wholesale failure to provide an element of a report directly mandated by the regulations.”

4. Labor Dept. Indefinitely Delays H-2B Wage Methodology Final Rule – The interim final rule establishing the current prevailing wage methodology for the H-2B program remains in effect.

5. State Dept. Transitions to Online Immigrant Visa Application – The new online forms replace the paper DS-230 and DS-3032.

6. OSC Discourages Pre-Population of I-9 Forms – Among other things, the OSC noted that pre-population increases the likelihood of including inaccurate or outdated information.

7. OSC Recommends Against Contractor Requiring Subcontractor’s Employees To Produce Original I-9 Documents – This type of scenario could present a number of problems, the OSC warned.

8. ABIL Global: Mexico – Extensive efforts to reduce backlogs and improve processing time frames are evident eight months after enactment of the new Migration Act.

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. DHS Inspector General Releases Report on Implementation of L-1 Visa Regulations

On August 9, 2013, the Department of Homeland Security (DHS)’s Office of Inspector General (OIG) released a report containing recommendations aimed at improving the L-1 visa program in response to a request from Sen. Charles Grassley for an examination of the potential for fraud or abuse in the program. The L-1 visa program facilitates the temporary transfer of foreign nationals with management, professional, and specialist skills to the United States. For the report, the OIG observed DHS personnel and Department of State consular officials process L-1 petitions and visas. The OIG also interviewed 71 managers and staff in DHS and the Department of State.

The OIG found that although U.S. Citizenship and Immigration Services regulations and headquarters memoranda provide guidance on the definition of specialized knowledge, they are insufficient to ensure consistent application of L-1 visa program requirements in processing visas and petitions. More communication between DHS and the Department of State would improve the processing of blanket petitions, the report says. The OIG determined that program effectiveness would be improved and risks reduced with additional effort in (1) training for U.S. Customs and Border Protection officers to enable them to fill their L-1 gatekeeper role at the northern land border more effectively; (2) improving internal controls of the fee collection effort at the northern land border; (3) more rigorous consideration of new office petitions to reduce fraud and abuse; (4) providing an adjudicative tool that is accessible to all federal personnel responsible for L-1 decisions; and (5) consistently applying Visa Reform Act anti-“job-shop” provisions to L-1 petitions.

An appendix notes that the top 10 L-1 employers are Tata Consultancy Services Limited, Cognizant Tech Solutions US Corp, IBM India Private Limited, Wipro Limited, Infosys Technologies Limited, Satyam Computer Services Limited, HCL America Inc., Schlumberger Technology Corp., PricewaterhouseCoopers LLP, and Hewlett-Packard Co.

REPORT, which includes details on the OIG’s recommendations and USCIS’s response, along with appendices containing statistics.

Back to Top

---

2. Special Immigrant Visa Program for Iraqis Set To Expire

The Special Immigrant Visa (SIV) program for Iraqi nationals who worked for or on behalf of the U.S. government will expire on September 30, 2013. Individuals applying under this program, including family members, must be admitted to the United States or adjust their statuses before October 1, 2013.

The program covers Iraqi nationals who have been employed by or on behalf of the U.S. government in Iraq for a period of at least one year, from March 20, 2003, to the present. The expiration date also applies to spouses and unmarried child(ren) accompanying or following to join the principal applicants.

As announced at its inception, the Iraqi SIV program will expire on September 30, 2013, at 11:59 p.m. EDT unless Congress extends the program. After September 30, 2013, USCIS will reject any petitions or applications filed based on the Iraqi SIV program. Beginning on October 1, 2013, USCIS will suspend processing of any pending Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, or Form I-485, Application to Register Permanent Residence or Adjust Status, filed based on the Iraqi SIV program.

ANNOUNCEMENT

Back to Top

---

3. BALCA Affirms Denial of Labor Cert for Technical Violation in Supervised Recruitment

In Matter of JP Morgan Chase & Co., the Board of Alien Labor Certification Appeals (BALCA) upheld the denial of a labor certification application filed by JP Morgan Chase for a vice president of mergers and acquisition because the company noted that addresses of applicants were included in their resumes instead of listing them as required. The BALCA noted that the regulation required the employer to “state” the addresses of the U.S. workers who applied for the job opportunity on the recruitment report itself and does not permit addresses to be incorporated by reference to other documents within the administrative file. Moreover, the employer appeared to have assumed that all of the applicants stated their address on their resumes, but there were a few resumes where no address was stated.

The BALCA acknowledged that some omissions may not be material to the review of the substance of an application. In this case, however, the BALCA found the reference to the resumes a “wholesale failure to provide an element of a report directly mandated by the regulations.”

The BALCA also noted that the selection of the case for supervised recruitment “puts the employer on notice that special scrutiny is being placed on the application.” Among other things, the recruitment report required under supervised recruitment is more detailed than the recruitment report required under basic labor certification processing. Simply put, the BALCA said, an employer “cannot shift the burden to the [Certifying Officer] to look through resumes to find the addresses of U.S. applicants.”

DECISION 2011-PER-00635

Back to Top

---

4. Labor Dept. Indefinitely Delays H-2B Wage Methodology Final Rule

The Department of Labor’s Employment and Training Administration has delayed indefinitely the effective date of its final rule on the wage methodology for the H-2B temporary non-agricultural employment) to comply with legislation that prohibits the agency from using any funds to implement it, and to permit time for consideration of public comments on the interim final rule published in April 2013.

The final rule would have revised the methodology by which the Department calculates the prevailing wages paid to H-2B workers and U.S. workers recruited in connection with a temporary labor certification to employ a nonimmigrant in H-2B status. The interim final rule establishing the current prevailing wage methodology for the H-2B program remains in effect.

ANNOUNCEMENT

Back to Top

---

5. State Dept. Transitions to Online Immigrant Visa Application

The Department of State is transitioning to an online immigrant visa application, effective September 3, 2013. The new online forms replace the paper DS-230 and DS-3032. Only Diversity Visa and Cuban Family Reunification Parole applicants will continue to use the paper forms.

Immigrant visa applicants will now apply online using Form DS-260 (Application for Immigrant Visa and Alien Registration), and applicants will name their agent online using Form DS-261 (Choice of Address and Agent).

FORMS

Back to Top

---

6. OSC Discourages Pre-Population of I-9 Forms

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a query about whether pre-population of employee information in section 1 of the Form I-9, Employment Eligibility Verification, is permissible. The query stated that U.S. Immigration and Customs Enforcement had said that pre-population is impermissible.

The OSC’s response noted that the I-9 instructions state that the employee must complete and sign section 1. Someone may assist the employee if he or she is unable to complete the form.

The OSC said that it discourages employers from pre-populating section 1 with previously obtained employee information. The agency noted that this increases the likelihood of including inaccurate or outdated information, which could lead an employer to reject documents presented or demand specific documents. This is particularly true, the OSC noted, if the employer does not provide an opportunity for the employee to review the information that was pre-populated and build in a method for making corrections. Further, the OSC noted, a mismatch could result if the employer uses outdated information to submit an E-Verify query.

OSC’s RESPONSE, which includes additional details

Back to Top

---

7. OSC Recommends Against Contractor Requiring Subcontractor’s Employees To Produce Original I-9 Documents

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a query about whether a contractor can require employees of subcontractors to produce the original documentation they had used for I-9 work authorization verification purposes for employment with the subcontractor.

The OSC did not delve into the specifics of the particular case in question, but said that in general, this type of scenario could present a number of problems. For example, the I-9 requirements note that an employer must review the documentation presented by an employee within three days of hire. If a general contractor were to ask the employee of a subcontractor to produce such documents a second time, given the passage of time that likely would have transpired, the employee may no longer have the documents originally presented. This could be the case because, for example, a document has expired and the employee now has a newer version; the employee has a different document due to adjustment of status and has forfeited the originally presented document; or the document was lost, stolen, or misplaced. If such an individual is then barred from employment, he or she may perceive that the general contractor and/or subcontractor has discriminated against him or her based on citizenship or immigration status. Because the proposed practice relates to the original I-9 verification process, such employees could allege discriminatory I-9 practices in violation of the antidiscrimination provisions of the law.

OCS’s RESPONSE

Back to Top

---

8. ABIL Global: Mexico

Extensive efforts to reduce backlogs and improve processing time frames are evident eight months after enactment of the new Migration Act.

After considerable backlogs accumulated during the first half of 2013, the National Immigration Institute (INM) has taken significant steps to enhance the processing time frames in all regional INM offices in Mexico.

Noteworthy changes include the acquisition of printers in all Mexican INM offices to issue new Temporary and Permanent Residence ID cards on site, to reduce the delivery time frames. Formerly, the ID cards were issued at the National Printing Office and eventually sent to the INM for collection, taking 5 weeks on average, compared to the 1-3 business days it takes with the new process.

In addition, the INM office in Mexico City has created special desks to process visa renewal applications and registrations for foreigners who arrive with pre-approved immigration status as temporary or permanent residents. This has reduced the processing times to 1 week in average, compared to the 4 to 6 weeks it used to take.

A new immigration regime has been in existence in Mexico since November 9, 2012, after almost 40 years under the previous scheme.

The changes in the law have caused significant processing delays in visa applications submitted at the INM, also given the immediate change in the Mexican presidency less than a month after the enforcement of the new law, which was followed by the substitution of many of the officers at the INM. Such drastic change in the regime resulted in processing delays due to new policies and ambiguities in the law. As a result, the new officers variously interpreted the criteria as they got used both to their new faculties and the changed policies.

Delays also resulted from the massive dismissal of public servants working at the INM for failure to pass compliance and trust tests, as part of the Mexican government’s anti-corruption efforts. Official sources announced in July of this year the dismissal of more than 620 people working at the INM during the current administration, which has been in office for 6 months.

In addition, the government offered special training by mid-July to immigration officers who are transferring from the Ministry of Foreign Affairs to work in Mexican consulates. The training is designed to prepare consular staff to adjudicate visa applications. There have been delays as the consulates acclimated to their new role. Training is expected to help make the process more efficient.

A steady application of the law has become evident during the second half of 2013, and we expect a stricter application of the law, its regulations, and the guidelines that support the practical application of the new Migration Act. Many of the policies initially contemplated in the Act have yet to be enforced, such as the negativa ficta (i.e., a work visa application is considered denied if no official response is received within 20 business days), the implementation of the points-based system that grants direct access to permanent resident status for highly qualified foreigners, and the quota system.

Back to Top

---

9. New Publications and Items of Interest

Role of the E-Verify Monitoring and Compliance Branch. U.S. Citizenship and Immigration Services has released an executive summary, “Role of the E-Verify Monitoring and Compliance Branch.” The summary outlines information delivered at a teleconference held in April 2013, during which M&C “subject matter experts” provided an overview of their role and responsibilities as part of the E-Verify employment eligibility verification process. Some of the common errors M&C has observed include creating duplicate cases for the same employee; immediately terminating employees who receive a tentative nonconfirmation; failing to create a case by the third day after the employee started work for pay; creating cases for employees who were hired before the E-Verify participant enrolled in E-Verify; and not reviewing acceptable documents or a document containing a photo.

SUMMARY

The summary lists resources, and recommends as a “best practice” familiarity with the most recent version of the E-Verify User Manual for Employers.

E-Verify User Manual for Federal Contractors

Manual for Employer Agents

Manual for Corporate Administrators

The summary also mentions the E-Verify Self-Assessment Guide, which assists participating employers in complying with user requirements.

LINKS TO A VARIETY OF E-VERIFY MANUALS AND GUIDES

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.

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012. The writer, Saundra Amrhein, was nominated as a finalist on the short list for the 2011 Santa Fe Writers Project Literary Awards. Green Card Stories is also featured on National Public Radio’s photo blog.

For more information, e-mail Lauren Anderson at lauren@greencardstories.com. See also the Green Card Stories website.

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

The following ABIL members have been ranked among the top lawyers in the country, in the following categories:

American Lawyer Media and Martindale-Hubbell 2013 Top Rated Lawyers in Immigration Law:

Laura Danielson 
Rami Fakhoury
Mark Ivener
Charles Kuck
Sharon Mehlman
Bernard Wolfsdorf

Top 25 Attorneys in EB-5 by the EB-5 Investors Magazine:

Mark Ivener
H. Ronald Klasko
Charles Kuck
Angelo Paparelli
Stephen Yale-Loehr

Martindale Hubbell AV Rated:

Laura Danielson
Rami Fakhoury
Steve Garfinkel
Mark Ivener
H. Ronald Klasko
Charles Kuck
Sharon Mehlman
Angelo Paparelli
Bernard Wolfsdorf 
Stephen Yale-Loehr

H. Ronald Klasko was also named one of the “Most Powerful Employment Attorneys in Immigration Law” in the United States by Human Resource Executive magazine. The magazine so named 20 lawyers in the country in its June 16, 2013, edition.

Mr. Klasko was appointed chair of the EB-5 Investor Committee of the American Immigration Lawyers Association. This was his fourth appointment to chair this committee.

Robert Loughran was selected for inclusion in the 20th Edition (2014) of The Best Lawyers in America in the practice area of Immigration Law.

Mr. Loughran will be the discussion leader for the ILW EB-5 Summit for Attorneys and Developers and will speak on “Developing the I-924 Application For Regional Center Under the Immigrant Investor Pilot Program” and “Documenting Job Creation Through the I-829 Petition by Entrepreneur to Remove Conditions.” The EB-5 Summit will be held at the Westin O’Hare in Chicago on Friday, September 6, 2013. The discussion is open to anyone interested in learning more about the EB-5 visa. More information.

Mr. Loughran will provide an “Update on Increased Government Investigations” at the 2013 FosterQuan Corporate Compliance Seminar to be held at the Westin Memorial City in Houston, Texas, on Tuesday, September 10, 2013. The seminar will feature government representatives and other experts discussing immigration challenges facing all employers. Timely updates, strategic advice for immigration compliance, and best practices critical to all employers will be provided, including Form I-9 Compliance and issues related to mergers and acquisitions and discrimination; E-Verify; and ICE/HSI investigations.

Cyrus Mehta recently co-authored or authored several new blog posts. “America’s Role In Syria After the Chemical Weapons Attack And Immigration Reform” is available at http://blog.cyrusmehta.com/2013/08/americas-role-in-syria-after-chemical.html. “Nearly 12 Years After 9/11 Applicants Perceived as Muslims Still Targeted Under a Secret Immigration Program“”The Lazarus Effect: How Comprehensive Immigration Reform Can Survive the House GOP and Come Back to Life”

Pearl Law Group has won the Bronze Stevie® Award in the 2013 International Business Awards for “Most Innovative Company of the Year” in North America.  The firm was considered among more than 3,300 nominees in more than 50 nations. MORE INFORMATION.

Angelo Paparelli has authored a new blog post: “RNC Hoisted on Its Own Immigration Petard in Opposing Path to Citizenship“.

Stephen Yale-Loehr  will speak on EB-5 immigrant investor issues on a webinar sponsored by the Council of Development Finance Agencies on September 18, 2013. Topics will include direct EB-5 vs. EB-5 regional center programs, minimum investment requirements, securities regulations, and business plans and economic reports. MORE DETAILS OR TO REGISTER.

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. DOL Proposes To Delay Effective Date of H-2B Wage Methodology Final Rule Indefinitely – The wage rule revised the methodology by which the DOL calculates the prevailing wage to be paid to H-2B workers and U.S. workers recruited in connection with temporary labor certifications to employ H-2B nonimmigrant workers.

2. USCIS Updates DOMA FAQ – The latest FAQ notes that U.S. citizens and lawful permanent residents in same-sex marriages to foreign nationals can now sponsor their spouses for family-based immigrant visas, and that spouses who were married in a U.S. state or foreign country that recognizes same-sex marriage, but who live in a state that does not, can file immigrant visa petitions for their spouses.

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

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

5. Member News – Member News

6. Government Agency Links – Government Agency Links

---

Details:

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

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

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

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

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

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

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

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

DOL’S FEDERAL REGISTER NOTICE OF PROPOSED RULEMAKING

Back to Top

---

2. USCIS Updates DOMA FAQ

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

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

The FAQ also includes information about applying for benefits, what to do about previous denials, changes in eligibility based on same-sex marriage, residence requirements, inadmissibility waivers.

FAQ

Back to Top

---

3. ABIL Global: South Africa

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

Transferring Employees and Their Families to South Africa

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

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

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

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

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

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

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

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

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

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

Back to Top

---

4. New Publications and Items of Interest

Selected statistics by program. The Department of Labor’s Office of Foreign Labor Certification (OFLC) has updated program fact sheets with FY 2013 third-quarter selected statistics for the permanent labor certification, prevailing wage determination, H-1B temporary visa, H-2A temporary agricultural visa, and H-2B temporary non-agricultural visa programs.

UPDATED FACT SHEETS (click on the “Selected Statistics by Program” tab under the introductory paragraph).

Also, The OFLC PERM, H-2A, H-2B, prevailing wage, and H-1B program disclosure data files for Quarter 3 of FY 2013 are now available. DISCLOSURE FILES AND CORRESPONDING RECORD LAYOUTS

Stakeholder teleconference on business issues. USCIS’ Nebraska Service Center will hold a stakeholder teleconference on business issues on Thursday, August 8, 2013, at 10 a.m. central time. Topics will include premium processing, I-140, I-360, I-485 EB, I-765 riding with EB I-485, I-131 riding with EB I-485, waivers as appropriate, I-824 as appropriate, and I-765(c)(9). Those wishing to be added to the distribution list for calls should email ceo.nsc@dhs.gov. Call-in information will be released at a later date.

Department of Justice educational video on employment eligibility verification discrimination. The Department of Justice’s Office of Special Counsel (OSC) released an educational video on July 11, 2013, to assist employers in avoiding charges of discrimination in the employment eligibility verification Form I-9 process and in the use of E-Verify. The video also helps educate employees about their legal rights. The OSC said it developed this video to address issues that frequently arise from calls to its hotline and charges filed. “Employers sometimes incorrectly believe that they need to request more documents than are necessary for the employment eligibility verification form I-9. Additionally, employers using E-Verify may improperly request specific documents due to misunderstanding of E-Verify requirements.” OSC’s new video highlights some practices that are not permissible and that could lead to discrimination claims.

OSC VIDEO

NOTICE ANNOUNCING THE VIDEO The latest OSC video is part of OSC’s EDUCATIONAL VIDEO SERIES. OSC also operates a hotline for employers and workers, providing guidance to employers on how to avoid discrimination and educating employees on their rights. In addition, OSC offers live webinars for both employers and employees. For more information about protections against employment discrimination under the immigration laws, call OSC’s worker hotline at: 1-800-255-7688 (1-202-616-5525, TTY for the hearing impaired); call OSC’s employer hotline at: 1-800-255-8155 (1-202-616-5525, TTY for the hearing impaired); email osccrt@usdoj.gov; or visit OSC’s WEBSITE.

USCIS reports on H-1B. USCIS has released several fiscal year 2012 annual reports to Congress:

• Characteristics of H-1B Specialty Occupation Workers
• Report on H-1B Petitions

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.

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012. The writer, Saundra Amrhein, was nominated as a finalist on the short list for the 2011 Santa Fe Writers Project Literary Awards. Green Card Stories is also featured on National Public Radio’s photo blog.

For more information, e-mail Lauren Anderson at lauren@greencardstories.com. See also the Green Card Stories website.

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

---

5. Member News

Mark Ivener served on the “Advanced – Best Practices for Investor Filings” and “Joint Overview of USCIS Policy Memo” panels at the Southern California EB-5 Conference in Newport Beach, California, on July 15, 2013.

Sharon Mehlman will speak at the American Immigration Lawyers Association’s PERM conference in Chicago, Illinois, on August 19, 2013. The topic is “The Dreaded PERM Audit and How the Compliance File May or May Not Help.”

Cyrus Mehta has authored or co-authored several new blog entry. “Bad Timing Alberto: BIA Has Confirmed That Same Sex Spouses Are Entitled To Immigration Benefits After US v. Windsor” “Hey Boss, I Need Premium Processing: Can an H-1B Employee Pay the Premium Processing Fee?”

Angelo Paparelli has published several new blog entries. ‘If Immigration Law Were a Person It Would Sing: ‘Oh Lord, Please Don’t Let Me Be Misunderstood” “You Say You Want a Devolution—In Immigration That Is”

Back to Top

---

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

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

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

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

5. 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. Senate Passes Comprehensive Immigration Reform; House Passage Uncertain

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

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

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

DETAILS AND THE TEXT OF THE BILL, S.744

Back to Top

---

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

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

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

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

DOMA DECISION

DETAILS AND ADDITIONAL COVERAGE

FAQ ABOUT THE RULING’S IMPACT ON IMMIGRATION CASES

Back to Top

---

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

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

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

Back to Top

---

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

The Department of Labor (DOL) has released a new version of Form 9141, Application for Prevailing Wage Determination.

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

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

FILLABLE FORM

iCERT PORTAL

Back to Top

---

5. New Publications and Items of Interest

USCIS Ombudsman’s annual report. U.S. Citizenship and Immigration Services’ (USCIS) Ombudsman Maria M. Odom released the 2013 Annual Report on June 27, 2013. The report notes, among other things, that employers have continued to raise concerns about inappropriate or unduly burdensome requests for evidence (RFEs). The report notes that in the reporting period, USCIS reviewed and posted for public comment RFE templates for several nonimmigrant employment-based categories, excluding H-1B specialty occupations and L-1B intracompany transferees with specialized knowledge. “While the templates offer a valuable mechanism to standardize and improve employment-based case processing, persistent issues remain,” the report notes. “These include USCIS not recognizing various modern business practices and managerial decisions.”

The report also notes that from fiscal years 2010 to 2012, USCIS received nearly 300 percent more filings in the fifth employment-based (EB-5) preference category from immigrants seeking to invest capital and create jobs for U.S. workers. This year the Ombudsman received 441 requests for EB-5 case assistance, representing approximately 10 percent of the office’s workload. The vast majority of these inquiries came from investors and regional center applicants whose cases had been pending beyond normal processing times, the report notes. Other difficulties included a perceived lack of responsiveness by USCIS, the issuance of duplicative RFEs, and needed guidance regarding processing protocols and requirements.

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.”

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.

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012. The writer, Saundra Amrhein, was nominated as a finalist on the short list for the 2011 Santa Fe Writers Project Literary Awards. Green Card Stories is also featured on National Public Radio’s photo blog.

For more information, e-mail Lauren Anderson at lauren@greencardstories.com. See also the Green Card Stories website.

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

Robert Loughran is serving on the American Immigration Lawyers Association’s Business Committee.

Mr. Loughran spoke on June 20, 2013, on recent EB-5 Regional Center Revocations at the IIUSA (Invest In USA) Conference in Las Vegas, Nevada.

Angelo Paparelli has posted several new blog entries. “Give Peace a Chance: End the U.S.-India Immigration and Trade War Now” “A Swimmingly Good Immigration Solution to Border Security”

Stephen Yale-Loehr was quoted in TribLIVE/USWorld on June 27, 2013. In “Immigration Bill Unlikely To Pass House,” he noted, “The Senate’s passage of a major immigration reform bill is a milestone, but it is only half the battle. A tougher battle lies ahead in the House.”

Mr. Yale-Loehr also was quoted by PolitiFact on June 27, 2013. In “Sen. Jeff Sessions Says Immigration Bill Has Provision That Lets Janet Napolitano Skip Fence,” Mr. Yale-Loehr noted that the provision in question “just gives DHS discretion not to build a fence at a particular location, not discretion to not build a fence at all.”

Mr. Yale-Loehr also was quoted by the News-Leader on comprehensive immigration reform legislation. He said Republicans must walk a fine line. “There are competing constituencies in reforming our broken immigration system. [Big businesses] may provide a lot of cash to fund a campaign, but it is the political base that often determines who wins a primary.”

Mr. Yale-Loehr also was quoted on immigration reform legislation issues in the Newark Advocate. He noted that passing immigration reform could give Republicans a “fighting chance” to win support from newly legalized Hispanic voters.

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

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

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

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

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

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

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. Senate Committee Approves Comprehensive Immigration Reform Bill

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

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

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

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

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

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

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

TEXT OF BILL INTRODUCED

LIST OF AMENDMENTS & THEIR OUTCOME IN THE MARKUPS

NICEC LETTER

Back to Top

---

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

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

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

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

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

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

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

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

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

27-PAGE MEMO

Back to Top

---

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

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

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

• Join Trusted Travelers through Global Entry, SENTRI, or NEXUS.
• Know the required travel documentation for your trip. (Hint: you will need a passport for air travel!) (See http://www.travel.state.gov/.)
• If you are from a Visa Waiver country, don’t leave home without your Electronic System for Travel Authorization (ESTA). More on getting your Electronic System for Travel Authorization before boarding your flight.
• For those traveling by air or sea on a visa, CBP has automated the I-94. Find your I-94 number HERE.
• Complete your Customs Declaration (your flight staff will hand out the form) before you deplane. What is eligible for duty exemptions?
• Know what merchandise you can bring to the United States. See HERE.
• Many agriculture products can bring damaging pests and diseases into the country; check to see what may be harmful. See HERE.
• Allow for lines at ports of entry. Summer is a busy travel season; be prepared and work with CBP officers as they do their job. See HERE.
• Monitor border wait times. Know what ports of entry have lighter traffic, or use an alternate to avoid delays. See HERE.
• Take it with you! CBP

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

CBP ANNOUNCEMENT, including the travel tips

ANNOUNCEMENT ABOUT SEASONAL BORDER STATION

FAQ ON 1-94 AUTOMATION

Back to Top

---

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

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

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

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

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

142-PAGE DECISION

Back to Top

---

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

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

Q&As ON THE E-VERIFY MONITORING & COMPLIANCE FUNCTIONS

USCIS I-9 BLOG explaining details about the new form

NEW I-9 FORM

Back to Top

---

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

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

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

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

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

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

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

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

Back to Top

---

7. New Publications and Items of Interest

Report on U.S.-Canada Entry/Exit Project. The Department of Homeland Security (DHS) and the Canada Border Services Agency (CBSA) released a joint report on May 14, 2013, on Phase I of the Entry/Exit project, part of the Beyond the Border Action Plan. The report outlines progress made to establish a coordinated Entry/Exit information system and further enhance security along the U.S.-Canada border. Under the pilot project, DHS and CBSA exchanged routine biographic entry information. The program tested the concept of an Entry/Exit system for both countries through the exchange of information, such that an entry into one country becomes an exit from the other.

REPORT & RELATED ANNOUNCEMENT

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.

 

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.

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012 and was a finalist for the International Photography Awards. The writer, Saundra Amrhein, was nominated as a finalist on the short list for the 2011 Santa Fe Writers Project Literary Awards. Green Card Stories is also featured on National Public Radio’s photo blog.

For more information, e-mail Lauren Anderson at lauren@greencardstories.com or see the Green Card Stories website.

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

The following ABIL members were listed in Chambers USA 2013:

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

Several ABIL members will speak at the upcoming American Immigration Lawyers Association conference to be held June 26-29, 2013, in San Francisco, California:

• Steve Clark will speak on “Fundamentals: Labor Certification 103: The Basics of Audits, Supervised Recruitment & Denials”
• Bryan Funai will speak on “Masters: Advanced E-1/E-2 Visa Issues”
• Kehrela Hodkinson will speak on “Basics of Consular Processing in Family Cases”
• H. Ronald Klasko will speak on “Masters Business: Hot Topics With EB-5 Regional Centers”
• Charles Kuck will speak on “How to Handle DOL and USCIS Investigations”
• Sharon Mehlman will speak on “Things I Hate About PERM”
• Cyrus Mehta will speak on “Masters: EB-1 in the Age of Kazarian”
• Angelo Paparelli will speak on “Globalization, Technology, and Telecommuting: Does Where You Are Mean Anything Anymore?”
• Julie Pearl will speak at the AILA “Global Forum on the Role of Technology in Global Immigration”
• Bernard Wolfsdorf will speak on “Essentials of EB-5 and Other Investor Visa Options at the Urban Tavern for New Members Division”
• Mr. Wolfsdorf and Stephen Yale-Loehr will speak on “EB-5: The Essentials of Investment”

AILA CONFERENCE PROGRAM

Robert Loughran authored “Checklist for Global Immigration Policy Formation,” published on May 13, 2013, in the HR Houston Newsletter.

Mr. Loughran will speak on the strengths and weaknesses of utilizing EB-5 regional centers as funding mechanisms at the Texas Economic Development Conference (TEDC)’s 2013 Mid-Year Conference on Wednesday, June 5, 2013.

Mr. Loughran was recently appointed to the Texas State Bar Standing Committee on Laws Relating to Immigration and Nationality, and AILA’s National Committee on Business Immigration.

Mr. Loughran spoke on a panel on May 22, 2013, at the Governor’s Small Business Forum on International Trade at the Hotel Austin in Austin, Texas. The topic was the legal and immigration implications involved in international trade.

Sharon Mehlman and Angelo Paparelli will speak on June 5, 2013, at the American Council for International Personnel’s Annual Symposium in Pentagon City, Virginia. The topic of their presentation is “Extraordinarily Confusing: EB-1 and EB-2 Options for Your Superheroes.”

Ms. Mehlman also spoke at the following:

• May 22, 2013, San Diego Employers Association, Employment Law Update, “Immigration Law Update for the Hospitality Industry”
• May 15, 2013 Society for Human Resources Management (San Diego), “Employment Eligibility Verification, New Form I-9 – Are you Prepared?”
• May 9, 2013, Park Avenue Presentations webinar, “The New Form I-9. Everything You Need to Know About This Difficult Two-Page Form”
• May 7, 2013, LawLogix Webinar, “The Mandatory New Form I-9: Q&A With Experts”

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

Mr. Mehta has published a new blog entry. “An Immigration Attorney’s Response to Statement of USCIS Union President Opposing Senate Immigration Bill, S. 744”

Mr. Paparelli has published several new blog entries. “The Immigration Scandal at DHS – Just As Bad As At IRS” “Immigration’s Minnesota Nice, Sen. Al Franken Helps Small Businesses and Regular Folks With the I-9 Process”

Julie Pearl will moderate a panel session on “Behind the DHS Curtain: The Life of a File” on June 5, 2013, at the American Council for International Personnel’s Annual Symposium in Pentagon City, Virginia.

Ms. Pearl spoke at LawTech Day on May 23, 2013, in San Francisco, California, contributing to a discussion about the latest trends in technology innovation at law firms.

Stephen Yale-Loehr gave a media briefing for journalists on May 17, 2013, at the Hall of States in Washington, DC. He analyzed the changes being made to the immigration bill in the Senate Judiciary Committee markup and predicted that the Senate would pass significant immigration reform but that the House probably would not pass a bill this year. He noted that crafting a comprehensive immigration bill is “like playing Rubik’s Cube with five different people…who all have the same Rubik’s Cube and are twisting it in different directions. To get it all to come together at the end so that you have one solid color is going to be very difficult.” Mr. Yale-Loehr was quoted in an article about the briefing in the Cornell Chronicle. He was also quoted about the briefing in Bloomberg’s Bureau of National Affairs Workplace Immigration Report on May 17.

Bernard Wolfsdorf, Wolfsdorf Immigration Law Group, received Who’s Who Legal‘s 2013 Lawyer of the Year award for Corporate Immigration.

Mr. Wolfsdorf moderated a panel on the I-526 petition process and latest request for evidence trends at the Third Annual EB-5 Investment Summit: Dealmakers Conference on May 30, 2013.

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