Headlines:

1. House Passes STEM Bill; ‘Achieve Act’ Introduced in Senate, Congressional Hispanic Caucus Reacts; Obama, Dems Advocate Comprehensive Immigration Reform – The STEM bill would allocate visas to STEM graduates without increasing overall immigration, by eliminating the diversity visa program. Neither the STEM bill nor the Achieve Act are likely to survive in the Senate.

2. U.S. Mission in India Expands Interview Waiver Program – The U.S. embassy in New Delhi expects this expansion to affect thousands of visa applicants in India.

3. DACA Filings/Approvals Soar After Election; USCIS Releases Guidance for Employers, Filing Tips – USCIS has received more than 300,000 requests for DACA. Most applicants are from Mexico (212,514).

4. USCIS Expands e-Request Services – The Web-based tool allows users to ask about applications and petitions submitted to USCIS.

5. USCIS Holds Teleconference on I-601 Waivers – Beginning on December 5, 2012, applications for waivers of grounds of inadmissibility must be filed in the United States unless the applicant meets criteria allowing him or her to file at an international USCIS office.

6. Head of Law Firm Sentenced to Prison for Visa Fraud – Participants in the scheme to file at least 137 fraudulent employment-based visa petitions “buried” a portion of the profits by purchasing cemetery plots and grave monuments.

7. ABIL Global: Canada – Update on Federal Immigrant Investor Program and Federal Skilled Worker Program – Pauses on new applications under the two programs will continue until further notice.

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links

Details:

1. House Passes STEM Bill; ‘Achieve Act’ Introduced in Senate, Congressional Hispanic Caucus Reacts; Obama, Dems Advocate Comprehensive Immigration Reform

The U.S. House of Representatives passed H.R. 6429, the “STEM Jobs Act of 2012,” by a 245-139 vote on November 30, 2012. The bill would allocate 55,000 immigrant visas for certain foreign graduates of advanced degree programs in science, technology, engineering, and mathematics (STEM). It would exclude students with degrees in biological and biomedical fields. Among other things, it also would eliminate the diversity visa (DV) program so that there would be no overall increase in the level of immigration.

Rep. Jeff Flake (R-Ariz.), said, “We should staple a green card to [foreign STEM graduates’] diplomas.” Rep. Darrell Issa (R-Cal.), who also voted in favor of the bill, said,”We need to break up the elephant into bite-size pieces. I want to break this up into passable bill by passable bill.”

H.R. 6429 is considered unlikely to pass in the Senate. Democrats said they support STEM visas but did not think the DV program should be eliminated and believe that STEM legislation should be part of a larger immigration reform package. Similarly, the Obama administration said in a statement that it “strongly supports” legislation to attract and retain foreign students who graduate with advanced STEM degrees, to establish a start-up visa for foreign-born entrepreneurs “to start businesses and create jobs,” and to “reform the employment-based immigration system to better meet the needs of the U.S. economy.” However, the administration said it does not support “narrowly tailored proposals that do not meet the President’s long-term objectives with respect to comprehensive immigration reform.” The statement advocated an approach that would “provide for attracting and retaining highly skilled immigrants and uniting Americans with their family members more quickly, as well as other important priorities such as establishing a pathway for undocumented individuals to earn their citizenship, holding employers accountable for breaking the law, and continuing efforts to strengthen the Nation’s robust enforcement system.”

Also, on November 27, 2012, Sens. Jon Kyl (R-Ariz.) and Kay Bailey Hutchison (R-Tex.) introduced the “Achieve Act,” S. 3639, which would allow certain undocumented youth to attain a visa. They would have to apply for employment authorization after they have completed higher education or served in the military. “We have to get this ball rolling … and this particular part of immigration reform seemed a logical place to begin,” Sen. Kyl said. The bill is more restrictive than the previously proposed DREAM Act and would limit eligibility to those who entered the United States under the age of 14, among other things. Sen. Hutchison also noted that the bill “doesn’t allow them to cut in line [for U.S. citizenship] in front of people who have come and abided by the rules of our laws today. It doesn’t keep them from applying under the rules today, but it doesn’t give them a special preference.” The Achieve Act is also considered unlikely to pass in the Senate.

The Congressional Hispanic Caucus rejected the Achieve Act, outlining nine principles that they said should be part of any effort toward comprehensive immigration reform: (1) requiring the estimated 11 million undocumented persons in the United States to register with the government, among other things, and “earn a path to permanent residency and eventual citizenship”; (2) reducing family backlogs to keep spouses, parents, and children together, including same-sex couples; (3) attracting “investors, innovators, and skilled professionals,” including those in STEM fields; (4) building on the DACA program and incorporating “DREAMers”; (5) including a “balanced, workable solution for the agriculture industry” that ensures that agricultural workers have a route to citizenship and employers have the workers they need; (6) providing legal avenues for foreign workers to fill gaps in the workforce, including labor rights, protection from discrimination, and a “reasonable path to permanency”; (7) ensuring enforcement that both protects the borders and fosters commerce; (8) establishing a “workable” employment verification system; and (9) ensuring that all workers “pay their fair share of taxes, fully integrate into our way of life and bear the same responsibilities as all Americans” and reaffirming “our shared belief that the Citizenship Clause of the Constitution is a fundamental freedom that must be preserved.”

STEM Bill Text and Additional Information

Statement on the STEM Jobs Act from Rep. Lamar Smith (R-Tex.), chairman of the House Judiciary Committee

Obama Administration’s Statement

Information on the Achieve Act, including the text of the bill

Congressional Hispanic Caucus’ Statement

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2. U.S. Mission in India Expands Interview Waiver Program

The U.S. Mission in India has announced expansion of the Interview Waiver Program (IWP), launched in March 2012, which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer. The U.S. embassy in New Delhi expects this expansion to affect thousands of visa applicants in India.

Under the current IWP, Indian visa applicants who are renewing visas that are still valid or expired within the past 48 months may submit their applications for consideration for streamlined processing, including waiver of a personal interview, within the following visa categories:

• Business/Tourism (B-1 and/or B-2)
• Dependent (J-2, H-4, L-2)
• Transit (C) and/or Crew Member (D) – including C-1/D
• Children applying before their seventh birthday traveling on any visa class
• Applicants applying on or after their 80th birthday traveling on any visa class

Under the expanded IWP, the following Indian applicants may also be considered for streamlined processing:

• Children applying before their 14th birthday traveling on any visa class
• Students returning to attend the same school and same program
• Temporary workers on H-1B visas
• Temporary workers on individual L-1A or individual L-1B visas

The renewal application must be within the same classification as the previous visa. If the previous visa is annotated with “clearance received,” however, that applicant is not eligible for a waiver of a personal interview.

Not all applications will be accepted for streamlined processing. As always, consular officers may interview any visa applicant in any category. Applicants who are renewing their visas may still need an appointment for biometrics (fingerprint and photograph) collection. All applicants must submit all required fees and the DS-160 application form.
The U.S. embassy in New Delhi said that this is “one of many steps the Department of State is taking to meet increased visa demand in India.” The embassy explained that in 2011, consular officers in India processed nearly 700,000 nonimmigrant visa applications, an increase of more than 11 percent over the previous year. Currently, applicants generally wait fewer than 10 days for visa interview appointments and spend less than one hour at U.S. consular facilities in India. In September 2012, the U.S. Diplomatic Mission to India implemented a new visa processing system throughout India that further standardizes procedures and simplifies fee payment and appointment scheduling through a new website.

For more details about procedures for submitting a renewal application, see HERE.

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3. DACA Filings/Approvals Soar After Election; USCIS Releases Guidance for Employers, Filing Tips

Following the results of the presidential election, the Obama administration released statistics showing that 53,273 undocumented persons have received relief as of November 15, 2012, under the deferred action for childhood arrivals (DACA) program. U.S. Citizenship and Immigration Services (USCIS) has received more than 300,000 such requests, of which the largest number by far are from Mexicans (212,514). The Immigration Policy Center estimates that approximately 1.8 million persons may be eligible.

USCIS noted that filing a request for consideration of deferred action for childhood arrivals involves several steps. You need to submit multiple forms, evidence and fees. Small mistakes in preparing your request could lead to it being rejected. USCIS released the following tips below to help avoid having your request rejected or delayed because of common filing errors:

1. Mail all forms together – You must mail the following forms in one package:

a. Form I-821D, Consideration of Deferred Action for Childhood Arrivals
b. Form I-765, Application for Employment Authorization
c. Form I-765WS, Worksheet

Read the mailing instructions to see where to mail the forms based on the state you live in. Remember to send it to the P.O. Box address if mailing through the U.S. Postal Service. All forms are available on www.uscis.gov for free. Do not pay for blank USCIS forms either in person or over the Internet.

2. Carefully review age guidelines before filing – If you have never been in removal proceedings, or your proceedings have been terminated, you must be at least 15 years of age or older at the time of filing.

You cannot be 31 or older as of June 15, 2012, to be considered for deferred action for childhood arrivals.

3. Write your name and date of birth the same way on each form – Variations in the way information is written can cause delays. For example, you should not write Jane Doe on one form and Jane E. Doe on another form. It is important to read all instructions on the forms carefully.

4. Sign your forms – You must sign both your Form I-821D and Form I-765. If someone helps you fill out the forms, that person must also sign both Form I-812D and Form I-765 in the designated box below your signature.

5. Use the correct version of Form I-765 – Always make sure you have the most recent form when submitting your request with USCIS. Review the USCIS Forms page to download the most recent version. You can download all USCIS forms and instructions for free at http://www.uscis.gov.

6. Use Form I-821D NOT Form I-821 – Form I-821D is used to request consideration of deferred action for childhood arrivals. Form I-821 is a different form used to apply for Temporary Protected Status, an entirely different process.

7. Do NOT e-file Form I-765 – Requests for consideration of deferred action cannot be e-filed. You must mail your package (Forms I-821D, I-765, I-765WS, evidence and fees) to the appropriate USCIS Lockbox.

8. Submit correct fees – The fee to request consideration of deferred action for childhood arrivals is $465 and cannot be waived. There are fee exemptions available only in limited circumstances. You may submit separate checks of $380 and $85, or one single check of $465.

9. Answer all questions completely and accurately – If an item is not applicable or the answer is “none,” leave the space blank. But do not leave date fields blank. See Tip #11, below. To ensure your request is accepted for processing, be sure to complete these required form fields:

• Form I-821D: Name, Address, Date of Birth
• Form I-765: Name, Address, Date of Birth, Eligibility Category

10. Provide all required supporting documentation and evidence –You must submit all required evidence and supporting documentation. These documents are required for USCIS to make a decision on your request. Please organize and label your evidence by the guideline it meets. USCIS may issue a request for evidence if additional information is needed to make a decision on your request.

11. Do not leave date or place of entry responses blank – You must fill in all fields related to dates and places of entry on Form I-821D. You may fill in your closest approximation of the date or place of entry if you do not know the exact information. You must enter dates in MM/DD/YYYY format.

12. Personal information to prove economic need – USCIS will consider whether you have an economic need to work by reviewing your personal current annual income, current annual expenses, and the current value of your assets. You do not need to include other household member’s financial information to establish your own economic necessity. It is not necessary to submit supporting documentation, though it will be accepted and reviewed if you choose to submit it.

13. If you make an error on a form, start over with a clean form – USCIS prefers that you type your answers into the form and then print it. If you are filling out your form by hand, use black ink. If you make a mistake, please start over with a new form. Scanners will see through white out or correction tape and this could lead to the form being processed as incorrect, and lead to processing delays or denial.

14. Review your entire request package – To ensure that your request is accepted for processing, it is important that you review your entire request package before you file with USCIS.

For more information on consideration of deferred action for childhood arrivals, visit HERE. If you have questions about filing a request, please call USCIS at 1-800-375-5283.

USCIS Guidance for Employers on DACA for Childhood Arrivals

USCIS Tips

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4. USCIS Expands e-Request Services

U.S. Citizenship and Immigration Services (USCIS) has expanded the services available via its e-Request system. The Web-based tool allows users to ask about applications and petitions submitted to USCIS. Users can now:

• Create a service request for all forms to either inquire about the status of an application or petition if it is outside of the normal processing time or notify USCIS about an administrative error in a notice or document USCIS sent.
• For Forms I-90 and N-400 only, ask about an Application Support Center appointment notice or other notice the user was expecting to receive.
• Access services for individuals with disabilities (508 compliant).

To submit an e-Request, go to the USCIS e-Request home page and have the receipt number available.

USCIS Notice

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5. USCIS Holds Teleconference on I-601 Waivers

On November 13, 2012, U.S. Citizenship and Immigration Services (USCIS) held a teleconference to discuss the transition to centralized Lockbox filing of Form I-601, Application for Waiver of Grounds of Inadmissibility, filed by applicants outside the United States.

As background, on June 4, 2012, USCIS phased in a new requirement that I-601s and associated Forms I-212 and I-290B be filed and adjudicated in the United States. An exception was made for applications filed at the U.S. consulate in Ciudad Juarez, Mexico, for six months. Beginning December 5, 2012, I-601s and associated forms must be filed in the United States unless the applicant meets criteria allowing him or her to file at an international USCIS office. The criteria include circumstances such as applicants residing in Cuba, or applicants facing urgent issues such as a medical emergency, a threat to personal safety, being close to aging out of visa eligibility, or having adopted a child locally and needing to depart the country imminently.

Teleconference Notice, including a link to international USCIS offices

Memo Listing Exceptions

This new process is separate from the notice of proposed rulemaking that was announced on March 30, 2012, outlining a proposed process for provisional unlawful presence waivers. USCIS Announcement Concerning that Notice

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6. Head of Law Firm Sentenced to Prison for Visa Fraud

Joseph Wai-Man Wu, the head of East West Law Group, a former law firm in Los Angeles, California, was sentenced to 10 months in prison on November 15, 2012. For approximately 13 years, from 1996 to 2009, he and others in his firm filed at least 137 employment-based visa petitions fraudulently for nearly 100 clients.

They also set up almost a dozen shell companies as part of the scheme, and laundered a portion of the profits by purchasing cemetery plots and grave monuments. The clients paid from $6,000 to $50,000 each. “Our agents encounter a lot of unusual money laundering schemes, but this is the first time we’ve come across a case where the suspects sought to bury their profits by buying cemetery plots,” said Claude Arnold, special agent in charge for HSI Los Angeles.

Press Release

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7. ABIL Global: Canada – Update on Federal Immigrant Investor Program and Federal Skilled Worker Program

Federal Immigrant Investor Program

On July 1, 2012, Citizenship and Immigration Canada (CIC) imposed a moratorium on the Federal Immigrant Investor Program (FIIP) to reduce the existing large number of applications while the program is reviewed. This pause on new applications will continue until further notice from CIC.

In August 2012, CIC invited various stakeholders and the public to participate in an online consultation on improving the FIIP, including how such a program can best support Canadian economic priorities.

By way of background, the Economic Action Plan 2012 included reforms of business immigration programs to target more active investment for Canadian growth companies. In April 2012, the Minister of Citizenship, Immigration and Multiculturalism announced that CIC was considering whether it should use its authority under the amended Immigration and Refugee Protection Act (IRPA) to create small short-term programs that may have a great impact on Canada’s economy.

In response, until September 2012, CIC received numerous submissions from stakeholders and the public on how the Department could:

• increase the economic benefit that immigrant investment capital brings to Canada;
• attract experienced international investors with the skills and resources needed to ensure they integrate into Canada’s economy; and
• develop efficient and cost-effective ways of delivering an investment program.

A summary of the results of the policy papers and recommendations is expected to be published on the CIC website in early 2013.

Federal Skilled Worker Program

On July 1, 2012, CIC also temporarily stopped accepting applications for the Federal Skilled Worker Program (FSWP). This temporary pause did not apply to those with a qualifying job offer or applying under the PhD stream. CIC will likely start accepting applications again when the revised FSWP selection criteria take effect. Proposed FSWP changes should come into force in early 2013.

For an application to be eligible for processing under FSWP, the applicant must include the results of his or her official language proficiency test and must fall into one of these categories:

1.    Skilled workers with a valid offer of arranged employment; or

2.    International students enrolled in a PhD program at a provincially or territorially recognized private or public post-secondary educational institution in Canada who:

–    have completed at least two years of study toward a PhD

–    are in good academic standing at the time they apply

–    are not recipients of an award requiring them to return to their home country to apply their knowledge and skills, or

3.    International students who graduated from a PhD program at a provincially or territorially recognized private or public post-secondary educational institution in Canada who:

–    graduated no more than 12 months before the date their application is received

–    did not receive an award that required them to return to their home country to apply their knowledge and skills (or did, but have satisfied the terms of the award).

A maximum of 1,000 applications from this category will be considered for processing each year. This will not be included in the total for any other cap. Applications will be considered in order they are received. The first cap year for the PhD stream began on November 5, 2011.

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8. New Publications and Items of Interest

Online resource center launched for USCIS Entrepreneurs in Residence initiative. U.S. Citizenship and Immigration Services (USCIS) has launched a new online resource center, “Entrepreneur Pathways,” for the agency’s Entrepreneurs in Residence initiative. The resource center provides “an intuitive way to navigate the immigration process,” and information on “future opportunities for engagement with the entrepreneurial community.” It currently contains three sections: Getting Started, Visa Guide, and Outreach. An article on the resource center is available on the White House blog. USCIS Blog’s Announcement. Resource Center.

Study on international mobility of foreign recipients of U.S. doctorates. The National Science Foundation released the results of a study in October 2012, “International Mobility and Employment Characteristics Among Recent Recipients of U.S. Doctorates.” The study noted, among other things, that overall, 20.4% of foreign-citizen graduates with U.S. doctoral degrees reported working or living in their country of origin in 2008, whereas 96.6% of U.S. citizen graduates reported working or living in the United States. Among foreign graduates who did not return to their country of origin, the United States was the most popular destination, with 88.9% reporting living in the United States. For this group, the European Union was the second most popular destination (3.7%), and Asia and Canada tied for third (2.7% and 2.6%, respectively). Report

EB-5 stakeholder engagement. U.S. Citizenship and Immigration Services (USCIS) invites interested parties to participate in a conversation with USCIS Director Alejandro Mayorkas regarding the EB-5 immigrant investor program on Monday, December 3, 2012, from 2 p.m. to 4 p.m. (Eastern). During the engagement, Director Mayorkas will discuss EB-5 policy and procedural issues and take questions from participants.
Participants may attend this engagement either in person or by teleconference. However, those attending via phone will be in listen-only mode. If you wish to attend in person, attendance is limited to the first 100 people who register. To register, email the Public Engagement Division at Public.Engagement@uscis.dhs.gov.

• If you plan to attend in person, reference “EB-5 Conversation – In Person”
• If you plan to attend by phone, reference “EB-5 Conversation – Phone”

Following registration, USCIS will confirm your attendance in person or by telephone. If you are attending in person, bring photo identification and arrive at least 15 minutes early to allow extra time to complete the security process. If you are attending by phone, use the information below to join the session.

Call-in Number: 1-888-324-8192

Passcode: EB5

Invitation

Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, recently 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 issue.

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. Green Card Stories is also featured on National Public Radio’s photo blog.

A bulk order discounted rate of $35 per copy for orders of 10 or more books is available for the Special Edition through December 15. A percentage of the sale proceeds of the Special Edition goes to a nonprofit organization promoting immigration awareness and support. For more information, e-mail Lauren Anderson at lauren@greencardstories.com.

For more information or to order, visit Green Card Stories.

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

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9. Member News

Charles Kuck has published a new blog entry. “The Achieve Act is Bad for Kids“.

Cyrus Mehta has published several new blog entries. “US Mission in India Expands Interview Waiver Program: Does this Bode Well for H-1B and L Visa Applicants?” “New Portal Welcomes Entrepreneurs to the USA: But Will This Change the Culture of ‘No’ at USCIS” He also has co-authored a new blog entry. “Where Do We Go From Here: The New Face Of Comprehensive Immigration Reform”

Cyrus Mehta authored an article that was published in Quartz, “A Trade War Wages Across U.S. Consulates in India Over H-1B Visas. Is a Truce in Sight?”

Angelo Paparelli has published several new blog entries. “Immigration By Chance – Save the DV Green Card Lottery” “Reforming Immigration ‘With Liberty and Justice for All’”

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10. Government Agency Links

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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. E-Verify Mandated in Four States in 2013 – Georgia, North Carolina, Pennsylvania, and Tennessee have all passed mandatory work authorization verification laws, the final provisions of which take effect in 2013.

2. EB-2 Priority Dates Become ‘Current’ in November, Except for China and India – For China in November, the EB-2 priority date cut-off is September 1, 2007; for India, the cut-off date is September 1, 2004.

3. Justice Dept. Settles With Florida Janitorial Services Company – The agreement resolves allegations that the company violated the antidiscrimination provision of the Immigration and Nationality Act when it failed to fully reinstate an employee in retaliation for asserting her right to work in the United States.

4. Justice Dept. Intervenes in Suit Against Texas Farm for Discriminating Against U.S. Worker – The Department alleges that the company discriminated against one of two U.S. citizen applicants when it refused to hire him based on his citizenship status.

5. DHS Partners With Loews Hotels & Resorts – Through the new partnership, Loews Hotels offers its YouFirst Platinum loyalty rewards members complimentary enrollment in the Global Entry program.

6. Joint U.S.-Canada Entry/Exit Pilot Begins – In October, both agencies began exchanging information so that recording an entry into one country becomes a record of exit from the other country.

7. ABIL Global: Canada – IT Workers and Work Permits – The IT Worker Program was shut down in all provinces recently, but Canadian work permits for IT workers are still possible in certain circumstances.

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links

Details:

1. E-Verify Mandated in Four States in 2013

Georgia, North Carolina, Pennsylvania, and Tennessee have all passed mandatory E-Verify laws, the final provisions of which take effect in 2013:

• Georgia: Larger employers already must use E-Verify, but HB 87 requires all Georgia employers with more than 10 employees to use E-Verify by July 1, 2013.
• North Carolina: Similarly, larger employers already must use E-Verify, but HB 36 requires employers that employ between 25 and 100 employees to use E-Verify by July 1, 2013.
• Pennsylvania: Effective January 1, 2013, the Public Works Employment Verification Act (SB 637) requires contractors and subcontractors performing public works projects for Pennsylvania worth at least $25,000 to use E-Verify for newly hired employees.
• Tennessee: The Tennessee Lawful Employment Act (HB 1378) requires employers with 6 to 199 employees to use E-Verify (or otherwise verify the work authorization of new hires) by January 1, 2013. Larger employers are already required to do so.

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2. EB-2 Priority Dates Become ‘Current’ in November, Except for China and India

The Visa Bulletin for November 2012 shows that the employment-based second preference (EB-2) immigrant visa priority dates have become “Current” for all countries except China and India. For China in November, the EB-2 priority date cut-off is September 1, 2007; for India, the cut-off date is September 1, 2004.

November Visa Bulletin

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3. Justice Dept. Settles With Florida Janitorial Services Company

The Justice Department has reached an agreement with Diversified Maintenance Systems LLC, a provider of janitorial and facilities maintenance services based in Tampa, Florida. The agreement resolves allegations that the company violated the antidiscrimination provision of the Immigration and Nationality Act (INA) when it failed to fully reinstate an employee in retaliation for asserting her right to work in the United States.

The charging party alleged that the company failed to provide the employee with proper notice and instructions for contesting an initial data mismatch in E-Verify, resulting in E-Verify issuing an erroneous final response that she was not work-authorized.

Although the employee immediately visited the Social Security Administration (SSA) after receiving verbal notice of the initial data mismatch and instructions from her supervisor, the employee alleged that the supervisor failed to give her the proper E-Verify paperwork that would have enabled the SSA to resolve the mismatch. As a result, the E-Verify program provided an erroneous final response, known as a “final nonconfirmation,” to the employer, stating that the charging party was not eligible to work in the United States. The company subsequently terminated the employee, and the employee contacted the E-Verify hotline for help. An E-Verify agent notified the employer that the employee was authorized to work, but the employee’s manager refused to reinstate her employment, allegedly because she contacted E-Verify and asserted her right to work under the antidiscrimination provision of the INA. The INA protects employees from discriminatory practices in the employment eligibility verification process, including E-Verify, and prohibits employers from retaliating against individuals who assert their rights or oppose a practice that is illegal under the provision.

Under the terms of the settlement agreement, the company agreed to pay $6,800 to the employee, which included back pay and interest, along with a $2,000 civil penalty. The company also agreed to training from the Justice Department on the antidiscrimination provision and training from the Department of Homeland Security on proper E-Verify procedures. The case was settled before the Justice Department filed a complaint.

Announcement

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4. Justice Dept. Intervenes in Suit Against Texas Farm for Discriminating Against U.S. Worker

The Justice Department recently filed a motion to intervene in a lawsuit against Jerry Estopy, d/b/a Estopy Farms, a sorghum and soy farm in McAllen, Texas, which also provides equipment and equipment operators for harvests at other farms. The Justice Department seeks to intervene in a lawsuit filed by two U.S. citizens against the farm. The Department alleges that the company discriminated against one of the U.S. citizens when it refused to hire him based on his citizenship status.

According to the department’s complaint, a U.S. citizen with over 12 years experience operating cotton combines and tractors applied for a position with Estopy Farms as a cotton picker operator around June 2010. Estopy Farms hired a number of seasonal foreign workers but not the U.S. citizen. The department found reasonable cause to believe that the company did not hire the U.S. citizen because it preferred to hire foreign workers under the H-2A visa program.

Texas Rio Grande Legal Aid filed a lawsuit with the Office of the Chief Administrative Hearing Officer (OCAHO) within the Justice Department’s Executive Office for Immigration Review on behalf of the two U.S. citizens on November 14, 2011. Because a complaint has already been filed, the department seeks to intervene in the existing lawsuit.

Announcement

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5. DHS Partners With Loews Hotels & Resorts

Secretary of Homeland Security Janet Napolitano recently announced a new partnership between the Department of Homeland Security and Loews Hotels & Resorts to promote the Department’s expedited traveler programs, which includes CBP’s Global Entry and the Transportation Security Administration’s (TSA) Pre?™.

Through the new partnership, Loews Hotels offers its YouFirst Platinum loyalty rewards members complimentary enrollment in the Global Entry program. CBP will review the applicant’s information; conduct an in-person interview at a CBP enrollment center, including providing fingerprints; and complete a background check.

CBP has also worked with American Express and United Airlines, which provide reimbursements for their top-tier customers, and continues to partner with other private-sector entities to expand the network of Global Entry members.

Currently available at 30 U.S. airports, Global Entry streamlines the screening process for trusted travelers through biometric identification and reduces average wait times by 70 percent, according to DHS, with more than 75 percent of travelers using Global Entry processed in under five minutes. More than a million people are enrolled in Global Entry, and these travelers have used its automated kiosks more than three million times.

The TSA Pre?™ pre-screening initiative allows eligible passengers to volunteer information about themselves to expedite their screening. Eligible passengers enter a separate security lane where they undergo expedited screening, and may pass through screening technology without removing shoes, light outerwear, belts, laptops, or 3-1-1 compliant liquids/gels from their carry-on. To be eligible, participants must be U.S. citizens traveling through one of the 25 participating U.S. airports and members of CBP Trusted Traveler programs or select frequent flyers of participating airlines. More than 2.8 million passengers have received expedited screening through TSA Pre?™ security lanes since the initiative began in October 2011, DHS said.

Announcement

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6. Joint U.S.-Canada Entry/Exit Pilot Begins

The Department of Homeland Security (DHS) and the Canada Border Services Agency (CBSA) have begun the Phase I pilot of the Entry/Exit program, as outlined in the Beyond the Border Action Plan.

Routine biographic information will be collected under the pilot until January 31, 2013. In October, both agencies began exchanging this information so that recording an entry into one country becomes a record of exit from the other country. The pilot will not affect regular port operations in any way.

As part of the pilot, DHS and CBSA will exchange routinely collected data on third-country nationals (those who are citizens of neither Canada nor the United States), permanent residents of Canada, and lawful permanent residents of the United States at the following four ports of entry:

• Pacific Highway, Blaine, Washington/Pacific Highway, British Columbia;
• Peace Arch, Blaine, Washington/Douglas (Peace Arch), British Columbia;
• Lewiston-Queenston Bridge, Lewiston, New York/Queenston-Lewiston Bridge, Ontario;and
• Rainbow Bridge, Niagara Falls, New York/Niagara Falls Rainbow Bridge, Niagara Falls, Ontario.

DHS said the coordinated entry/exit system will help the U.S. and Canada identify persons who overstay their lawful periods of admission; better monitor the departure of persons subject to removal orders; and verify that residence requirements are being met by applicants for continued eligibility in immigration programs.

DHS noted that the process of sharing personal information will be in accordance with each country’s privacy laws and policies. It will also be consistent with the Beyond the Border Action Plan’s Joint Statement of Privacy Principles and a Letter of Intent agreed to by DHS and CBSA.

Announcement

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7. ABIL Global: Canada – IT Workers and Work Permits

Although Canada does not have an equivalent work visa to that of the U.S. H-1B temporary work visa, for years information technology workers could rather easily secure a Canadian Work Permit on obtaining a Canadian job offer under what was known as the Information Technology Worker Program. The IT Worker Program existed from 1997 until recently when it was shut down in all provinces.

Canadian work permits for IT workers are still possible if a Human Resources and Skills Development Canada (HRSDC) Service Canada Labour Market Opinion is obtained:

1. if the employment is in the province of Québec under a February 2012 Memorandum of Understanding between Citizenship and Immigration Canada and the provincial Québec government if the worker will be employed in one of 44 occupations (which include, among others, IT Consultants, Software Engineers and Designers, Computer Programmers, and Interactive Media Developers);
2. if the employment is in the provinces of Ontario or British Columbia and in the video gaming and digital animation/visual effects industries and requires a Software Engineer and Designer or a Graphic Designer and Illustrator; or
3. if the first two possibilities do not apply, then if the Minimum Advertising Requirements of HRSDC have been met and a determination made by HRSDC that the employment of the foreign national is likely to have a neutral or positive effect on the labor market in Canada.

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8. New Publications and Items of Interest

GAO recommendations on improving H-2A program. The U.S. Government Accountability Office (GAO) has published Modernization and Improved Guidance Could Reduce Employer Application Burden (GAO-12-706). The GAO noted that over 90 percent of employer applications for H-2A temporary agricultural workers were approved in fiscal year (FY) 2011, but some employers experienced processing delays. For example, the Department of Labor (DOL) processed 63 percent of applications in a timely manner in FY 2011, but 37 percent were processed after the deadline, including 7 percent that were approved less than 15 days before workers were needed. This left some employers little time for the second phase of the application process, which is managed by the Department of Homeland Security (DHS), and for workers to obtain visas from the Department of State.

The GAO noted that although workers can apply for visas online, most of the H-2A process involves paper handling, which contributes to processing delays. In addition, employers who need workers at different times of the season must repeat the entire process for each group of workers. Although the agencies lack data on the reasons for processing delays, employers reported delays due to increased scrutiny by DOL and DHS when these agencies implemented new rules and procedures intended to improve program integrity and protect workers. For example, in FY 2011, DOL notified 63 percent of employers that their applications required changes or additional documentation to comply with its new rules, up sharply from previous years.

Federal agencies are taking steps to improve the H-2A application process. DOL and DHS are developing new electronic application systems, but both agencies’ systems have been delayed. DOL also recently began using e-mail to resolve issues with employers, and all three agencies provided more information to employers to clarify program requirements.

Even with these efforts, the GAO noted, some employers view DOL’s decisions as inconsistent. For example, some employers received different decisions about issues such as whether they can require workers to have experience in farm work and questioned the methods states used to decide whether the job qualifications in their applications were acceptable. The GAO found that states used different methods to determine acceptable qualifications, which is allowed under DOL’s guidance.

The GAO recommends that: (1) DOL and DHS use their new electronic application systems to collect data on the reasons applications are delayed and use this information to improve the timeliness of application processing; (2) DOL allow employers to submit one application for groups of similar workers needed in a single season; and (3) DOL review and revise, as appropriate, its guidance to states regarding methods for determining the acceptability of employment practices in employers’ applications.

DHS and DOL agreed with the GAO’s recommendation to collect additional data, and DOL agreed with the recommendation to update its guidance. DOL disagreed with the recommendation that it allow employers to apply once per season. GAO said it believes that the recommendation is still valid and that a single application does not preclude timely testing of the labor market as workers are needed.

Report

Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, recently 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 issue.

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. Green Card Stories is also featured on National Public Radio’s photo blog.

For more information or to order, visit Green Card Stories.

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

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9. Member News

Laura Danielson,  Robert Loughran, Rami Fakhoury, and Angelo Paparelli recently spoke at a FEM Detroit Chapter meeting on global immigration expectations for corporations, held on October 19, 2012. Ms. Danielson spoke on China, Mr. Fakhoury spoke on India, Mr. Loughran spoke on Latin America with a focus on Brazil, and Mr. Paparelli spoke on the United States.

Cyrus Mehta has co-authored a new blog entry. “Yes He Can: A Reply to Professors Delahunty and Yoo”

Cyrus Mehta, Bernard Wolfsdorf, and Stephen Yale-Loehr will speak at PLI’s 45th Annual Immigration & Naturalization Institute on November 19-20, 2012, in New York. Mr. Mehta will speak on ethics. Mr. Wolfsdorf and Mr. Yale-Loehr will be on the EB-5 panel.

Angelo Paparelli has published several new blog entries. “Immigration’s NannyStateGate: Picking EB-5 Winners and Losers” “Immigration Lawyers To Join Big Bird in Unemployment Lines”

Bernard Wolfsdorf has published a new blog entry. “DACA – To File or Not to File, That is the Question”

The following are ABIL member firms listed in US News Best Law Firms 2013 – National:

Chin & Curtis, LLP
Flynn & Clark, P.C.
FosterQuan, LLP
Fredrikson & Byron, P.A.
Garfinkel Immigration Law Firm
Ivener & Fullmer, LLP
Klasko, Rulon, Stock & Seltzer, LLP
Kuck Immigration Partners LLC
Larrabee Mehlman Albi Coker, LLP
Maggio & Kattar, P.C.
Seyfarth Shaw, LLP
Serotte Reich & Wilson
Trow & Rahal, P.C.
Wolfsdorf Immigration Law Group

The following are ABIL member firms listed in US News Best Law Firms – Regional:

California: Ivener & Fullmer
California: Pearl Law Group
Tier 1 (New York City): Cyrus D. Mehta & Associates, PLLC
Tier 1 (New York City): Serotte Reich Wilson, LLP
Tier 1: Wolfsdorf Immigration Law Group
Tier 1 (Binghamton, NY): Miller Mayer, LLP
Tier 1 (San Diego, California): Larrabee | Mehlman | Albi | Coker LLP

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10. Government Agency Links

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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. Details Released on DV-2014 Lottery Program; DV-2013 Entrants Should Keep Confirmation Numbers – Online registration for the DV-2014 Program begins on October 2, 2012, at noon EDT, and concludes on November 3, 2012, at noon EDT. The Department of State also said it may select more DV-2013 entries on October 1, 2012, so DV-2013 entrants should keep their confirmation numbers even if they have not been selected yet.

2. DOL Delays Effective Date of H-2B Wage Rule, Announces Electronic Filing for H-2A, H-2B Labor Cert Applications – The Department of Labor expects to publish a final rule extending the effective date of the 2011 H-2B wage rule to March 27, 2013. Also, the Department announced the implementation of electronic filing for nonimmigrant temporary labor certification applications under the H-2A and H-2B visa programs through the iCERT System.

3. STEM Bill Fails in House – The bill would have provided permanent residence to 55,000 foreign students each year who graduate with advanced degrees in science, technology, engineering, or mathematics (STEM) from U.S. universities and agree to work for at least five years in the United States in a STEM field.

4. DHS To Extend Haiti TPS – The Department of Homeland Security expects to publish a notice in the Federal Register shortly announcing this decision.

5. CBP Announces Delays in Processing I-94 Arrival/Departure Records – CBP is experiencing delays in processing foreign visitors’ travel information in the Form I-94 Arrival/Departure Record database.

6. Older Versions of Greek Passport Are Invalid – The government of Greece recently announced that Greek passports are valid for travel only if issued on or after January 1, 2006, regardless of expiration date.

7. ABIL Global: United Kingdom – A Numbers Game – The United Kingdom has introduced various restrictive immigration policies.

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links

Details:

1. Details Released on DV-2014 Lottery Program; DV-2013 Entrants Should Keep Confirmation Numbers

Online registration for the DV-2014 Program begins on Tuesday, October 2, 2012, at noon EDT, and concludes on Saturday, November 3, 2012, at noon EDT. Applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV). Paper entries will not be accepted. The Department of State strongly encourages applicants not to wait until the last week of the registration period to enter. Heavy demand may result in website delays.

Selectees for the DV program are chosen by a computer-generated, random drawing. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration to the United States, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the past five years. No single country may receive more than seven percent of the available diversity visas in any one year.

For DV-2014, natives of Guatemala are now eligible to enter the program.

Natives of the following countries are not eligible to apply because the countries sent more than 50,000 immigrants to the United States in the previous five years: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. A “native” ordinarily means someone born within a particular country, regardless of the individual’s current country of residence or nationality. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

For DV-2014, the Department of State once again will implement an online process to notify entrants of their selection and to provide information about the immigrant visa application and interview. Beginning May 1, 2013, DV-2014 entrants will be able to use their confirmation number provided at registration to check online through Entry Status Check. Successful entrants will receive instructions on how to apply for immigrant visas for themselves and their eligible family members. Confirmation of visa interview appointments will also be made through Entry Status Check.

For detailed information about DV-2014 entry requirements, along with frequently asked questions about the DV program, see the instructions for the DV-2014 Diversity Visa program. The related Federal Register notice was published on September 28, 2012.

The Department of State also noted that DV-2013 entrants should keep their confirmation numbers until at least September 2013, even if they were not selected on May 1, 2012. The Department said it may select more DV-2013 entries on October 1, 2012. Entrants in the DV-2013 program may check the status of their entries through Entrant Status Check through September 30, 2013.

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2. DOL Delays Effective Date of H-2B Wage Rule, Announces Electronic Filing for H-2A, H-2B Labor Cert Applications

In anticipation of the enactment of H.J. Res 117, which prohibits the Department of Labor from expending funds to implement the 2011 H-2B wage rule for the duration of that continuing resolution, the Department expects to publish a final rule extending the effective date of the 2011 wage rule to March 27, 2013. It has not yet been published in the Federal Register but is available online.

Also, the Department announced the implementation of electronic filing for nonimmigrant temporary labor certification applications under the H-2A and H-2B visa programs through the iCERT Visa Portal System (iCERT System). Employers or their authorized representatives may submit H-2B applications electronically beginning on October 15, 2012, and H-2A applications beginning on December 10, 2012.

The Department will hold four webinar training sessions (two for filing in the H-2B program and two for filing in the H-2A program) to orient program users to electronic filing through the iCERT System. These sessions will be announced on the OFLC’s Web site once dates are finalized. Employers or their authorized representatives choosing not to use this new filing option must continue to file their H-2A and H-2B applications with the Department using the traditional paper-based filing method.

Electronic Filing Notice

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3. STEM Bill Fails in House

On September 20, 2012, the U.S. House of Representatives rejected the STEM Jobs Act (H.R. 6429), sponsored by Rep. Lamar Smith (R-Tex.) by a vote of 257-158. (288 votes were required to pass under suspension of the rules.) The bill would have provided permanent residence to 55,000 foreign students each year who graduate with advanced degrees in science, technology, engineering, or mathematics (STEM) from U.S. universities and agree to work for at least five years in the United States in a STEM field. The bill included requirements for an employer to petition on the student’s behalf and a labor certification process.

Democrats who voted against the measure signaled that they were in favor of similar legislation but objected to a provision that would have eliminated the diversity visa program. Congress may take up this and similar bills in November, after the presidential election.

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4. DHS To Extend Haiti TPS

Secretary of Homeland Security Janet Napolitano is extending Haiti’s temporary protected status (TPS). The Department of Homeland Security expects to publish a notice in the Federal Register shortly announcing this decision.

The Federal Register notice will provide additional guidance on:

• Who is eligible for TPS;
• How to re-register if you have TPS;
• When to begin filing TPS applications;
• How to request an employment authorization document (EAD);
• Six-month automatic extension of current EADs;
• TPS fees and fee waiver procedures; and
• Other TPS-related information.

The 60-day re-registration period for current Haiti TPS beneficiaries will begin on the day the Federal Register notice is published. Individuals who have not continuously resided in the United States since January 12, 2011, will not be eligible.

Advance Notice

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5. CBP Announces Delays in Processing I-94 Arrival/Departure Records

U.S. Customs and Border Protection (CBP) announced on September 17, 2012, that it is experiencing delays in processing foreign visitors’ travel information in the Form I-94 Arrival/Departure Record database. CBP said this does not affect the majority of foreign travelers visiting for business or leisure and will not affect any visitor’s record of departure.

CBP is exploring automating the I-94 to allow for the collection of arrival/departure information electronically to streamline the arrival and inspection process for travelers. CBP is coordinating with other agency stakeholders and is considering rulemaking.

Announcement

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6. Older Versions of Greek Passport Are Invalid

The government of Greece recently announced that Greek passports are valid for travel only if issued on or after January 1, 2006, regardless of expiration date. Greece also announced:

• Greek passports issued before January 1, 2006, are invalid for admission into the United States.
• All versions of Greek official and diplomatic passports are valid for admission until the document expiration date.
• All versions of the Greek passport are valid for return to Greece for Greek nationals.

As of February 1, 2007, U.S. Customs and Border Protection (CBP) began imposing penalties on transportation carriers for bringing anyone who is applying for admission to the United States with a noncompliant Greek passport into the United States.

Announcement

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7. ABIL Global: United Kingdom – A Numbers Game

The United Kingdom has introduced various restrictive immigration policies.

Since coming to power, the Conservative-led coalition government of the United Kingdom has introduced a number of changes to work, study, and family migration routes in an effort to reduce net migration. In crafting this barrier of restrictive policy, the government has trumpeted each new reform as a building block toward saving the UK’s economy and protecting its people. However, in restricting the routes that permitted many productive and talented migrants to enter and remain, the government is frustrating the country’s fiscal health and playing to a culture of alarmism.

Among those adversely affected by this approach have been Non-European Economic Area (non-EEA) migrant employees and the businesses who would seek to hire them. By constructing a wall of red tape in the form of confusing application forms, voluminous guidance, and unreasonable requirements, the UK government has given the distinct impression that the UK is closed for business.

Universities, too, have been hard-hit by the reforms and are faced with potentially losing billions of pounds due to the crackdown on overseas students. These changes limit the time non-EEA students can study in the UK, cut the number of hours they may work, reduce the options for post-graduation employment, and stem the ability of migrants to bring their spouses and children. The changes have caused significant reductions in enrollment.

Most recently, the UK government set its sights on family migration. Among the most criticized of these reforms, which came into force on July 9, 2012, has been the introduction of a minimum income of £18,600 for British citizens and settled persons who wish to sponsor a non-EEA migrant as their partner. Even higher income thresholds are in place for those seeking to sponsor a child or children. Additionally, the government now imposes an unreasonably long probationary period of five years (raised from two years) before non-EEA migrant partners may apply for settlement.

While undocumented immigration and abuses of the system are clearly legitimate concerns for any nation, the present UK government has adopted an exclusionary stance that acts as a barrier to many of the very people the UK should seek to attract. Bright students, productive employees with jobs and sponsors, and the spouses and partners of British citizens are all among those who have been prevented or discouraged from a life in the UK. Sadly, this appears to be a numbers game that we will all lose.

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8. New Publications and Items of Interest

DV-2014 lottery. The Wolfsdorf Immigration Law Group has published “The ‘Cinderella’ DV-2014 Lottery: ‘Winners’ To Get Another Dance at the Ball.” The blog entry notes that Of the more than 100,000 DV registrants, slightly more than half will end up disappointed when they discover they are unable to obtain a green card. The DV program is a “Cinderella visa,” which expires at midnight on September 30, the end of the federal fiscal year. Tens of thousands of entrants find themselves unsuccessful in their quest for a green card every year, unable to reach the finish line by the deadline to complete immigrant visa processing.

Updated fact sheets on FY 2012 statistics. The Department of Labor has posted updated program fact sheets on FY 2012 selected statistics:

• Permanent Labor Certification
• Prevailing Wage Determinations
• H-1B Temporary Visas
• H-2A Temporary Agricultural Visas
• H-2B Temporary Nonagricultural Visas

DACA data. U.S. Citizenship and Immigration Services released new data on September 14, 2012, showing that the agency has accepted 82,361 requests for deferred action for childhood arrivals so far, scheduled 63,717 biometric appointments (this number may include rescheduling), readied 1,600 requests for review, and completed processing of 29 requests. Christopher Bentley, a USCIS spokesperson, reportedly said that USCIS does not plan to release information on the number of approvals and denials.

DOL proposal on H-1B visas. The National Foundation for American Policy has published “DOL Threatens Personal and Commercial Privacy in Proposal Directed Against Skilled Foreign Nationals.” The report argues that a Department of Labor (DOL) proposal aimed at the employment of skilled foreign nationals on H-1B visas will threaten personal and commercial privacy, make it harder for employers to serve customers, and discourage hiring skilled personnel to perform work in the United States. The report notes that the DOL proposal to change the labor condition application (LCA) significantly would require employers to divulge information in a public access file, available to anyone upon request, that would include sensitive information about clients and revenue, as well as personal information on sponsored employees that would leave skilled foreign nationals vulnerable to identity thieves and disgruntled individuals who may seek to do them harm, in addition to adding new bureaucratic steps.

Various organizations oppose the proposal, including the U.S. Chamber of Commerce, the Information Technology Industry Council, American Council on International Personnel, Society for Human Resource Management, American Immigration Lawyers Association, and NAFSA: Association of International Educators.

Report

Related Press Release

Visa processing and foreign visitor processing. The Departments of State and Homeland Security issued a joint report, “Executive Order 13597: Improvements to Visa Processing and Foreign Visitor Processing 180-Day Progress Report.” The report, released on September 19, 2012, notes that a foreign visitor’s first and primary encounters with the U.S. government shape opinions about the United States. Executive Order (EO) 13597 (Jan. 19, 2012) initiated a policy to ensure that these first impressions are the best impressions. The report states that over the past six months, the Departments have “made significant progress in three key areas: increasing productivity and efficiency; improving the traveler’s experience; and enhancing partnerships, both within the U.S. government and with the travel and tourism industry.”

Increased staffing has been key to lower visa interview wait times, the report says. By the end of 2012, the State Department will have created more than 50 new visa adjudicator positions in China and 60 in Brazil, including 43 hired under the Limited Non-Career Appointment program. Between October 2011 and July 2012, the Department deployed, on temporary duty, 220 consular officers to Brazil (a 253 percent increase over the number of temporary officers sent the previous fiscal year) and 48 officers to China (a 60 percent increase). The additional staff enabled the Department to meet the 40 percent capacity increase target goal outlined in EO 13597 in Brazil in June 2012, and will enable the Department to meet that goal in China by December 2012, the report notes.

Visa processing capacity in high-demand countries, particularly Brazil and China, has grown to meet sharply rising demand, the report states. Consular managers in China have expanded their work hours to maximize interview window use. Managers throughout Brazil’s four consular sections have responded to a nearly 50 percent year-on-year increase in demand by expanding operating hours, including occasional Saturdays and holidays.

On January 20, 2012, the two Departments initiated a two-year Interview Waiver Pilot Program (IWPP) to streamline processing for low-risk visa applicants. Many consular sections have implemented the IWPP during the past six months, the report notes. As of August 2012, 52 visa processing posts in 28 countries participate in the pilot program, waiving interviews for more than 63,000 low-risk visa applicants.

The Department of Homeland Security is also focusing on a risk-based approach to security to create efficiencies for travelers, as exemplified through its Trusted Traveler Programs.

2011 immigration statistics. The Department of Homeland Security has released its 2011 Yearbook of Immigration Statistics. The yearbook consists of a compendium of tables organized by subject, including legal permanent residents, refugees and asylees, naturalizations, nonimmigrant admissions, and enforcement actions.

Impact of the Arizona immigration law. The Congressional Research Service has published “Arizona v. United States: A Limited Role for States in Immigration Enforcement.” The report notes that the Arizona measure enacted in 2010 (S.B. 1070) “arguably represents the vanguard of recent attempts to test the legal limits of greater state involvement in immigration enforcement.” The report discusses the Supreme Court’s ruling in Arizona v. United Statesand implications the decision may have for immigration enforcement activity by states and localities.

Green Card Stories events.

• Wednesday, October 3, 2012
  Houston, Texas: Book Signing and Panel Discussion at Brazos Bookstore
  Join Green Card Stories collaborator Stephen Yale-Loehr and other guests for a discussion and book signing at Brazos Bookstore in Houston.
• Wednesday, October 10, 2012
  Washington, DC: Book Signing and Panel Discussion with KIND
  Join Green Card Stories collaborator Stephen Yale-Loehr and other guests for a discussion focused on the contributions of young immigrants to the United States and a book signing with Kids in Need of Defense.
• Thursday, October 18, 201
  Detroit, Michigan: Book Signing and Panel Discussion 
  Join Green Card Stories collaborators Laura Danielson and Stephen Yale-Loehr, along with other guests at this panel discussion in Detroit. Fakhoury Law Group and Global Detroit will host this special reception featuring the new award-winning book, Green Card Stories, on Thursday, October 18, 2012, at the Westin Book Cadillac in Detroit. The event, “Green Card Stories: The Human Face of the Immigration Debate,” will feature distinguished speakers and a panel discussion on the state of U.S. immigration policy. The event will begin at 5:30 p.m. and will offer guests a unique opportunity to gain insights on today’s immigration issues. All proceeds of the sale of the book at the event will go to Global Detroit, an effort to revitalize southeast Michigan’s economy by pursuing strategies that strengthen Detroit’s connections to the world and make the region more attractive and welcoming to immigrants, internationals, and foreign trade and investment as a means to produce jobs and regional economic growth. To RSVP, contact Natalia Hanna at Natalia@employmentimmigration.com or 248-643-4900.

USCIS national engagement. On October 16, 2012, USCIS will hold a public engagement (in-person in Washington, DC, and via teleconference) for EB-5 immigrant investor stakeholders.

Information

Notes from Previous Engagements by Topic

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9. Member News

The following ABIL members are listed in Best Lawyers in America, 19th Edition (2013):

Francis Chin
Enrique Arellano
Jacqueline Bart
Bernard Caris
Maria Celebi
Eugene Chow
Steve Clark
Arnold Conyer
Laura Danielson
Laura Devine
Rami Fakhoury
Bryan Funai
Steve Garfinkel
Kehrela Hodkinson
Avi Gomberg
Kenneth Ing
Mark Ivener
H. Ronald Klasko
Jelle Kroes
Charles Kuck
Robert Loughran
Gunther Maevers
Katie Malyon
Marco Mazzeschi
Sharon Mehlman
Cyrus Mehta
John Nahajzer
Ariel Orrego-Villacorta
Angelo Paparelli
Julie Pearl
William Reich
Nick Rollason
Steve Trow
Karl Waheed
Chris Watters
Bernard Wolfsdorf
Stephen Yale-Loehr

Rami Fakhoury, Robert Loughran, and Julie Pearl spoke at the Forum for Expatriate Management National Conference in Las Vegas on Thursday, September 13, 2012, on global immigration issues. Mr. Fakhoury spoke on India, Mr. Loughran spoke on Latin America with a focus on Brazil and Mexico, and Ms. Pearl spoke on the United Kingdom and the new European Union “Blue Card.”

Cyrus Mehta has published a new blog entry. “STEM Green Card v. Green Card Lottery”

Angelo Paparelli has published several new blog entries. “The Immigration Week That Was” “Immigration Buffets and Buffeting in Congress”

Stephen Yale-Loehr co-authored the immigration chapter in a book published by the American Bar Association, HIV & AIDS Benchbook. The chapter discusses the history and current state of inadmissibility grounds related to HIV and the relevance of HIV status in claims for asylum, withholding of removal, relief under the Convention Against Torture, and discretionary relief for lawful permanent residents with HIV or AIDS in removal proceedings.

Stephen Yale-Loehr will speak on EB-5 immigrant investor issues at the International Economic Development Council’s annual conference in Houston, Texas, on October 3, 2012, at 11 a.m. central time. At 6:30 p.m. that evening he will participate in a book discussion and signing about Green Card Storiesat Brazos Bookstore in Houston.

On October 10, 2012, Stephen Yale-Loehr will discuss immigration policy reform as part of a book signing and discussion about Green Card Stories at the Microsoft Innovation & Policy Center in Washington, DC.

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10. Government Agency Links

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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. USCIS Submits Emergency Requests to OMB for Deferred Action-Related Forms; ICE Agents File Lawsuit – USCIS has submitted information collection requests to the OMB for “emergency” consideration related to the new deferred action program.

2. USCIS Allows 30 Additional Days for Public Comment on Revised I-9 – USCIS received over 6,200 comments in response to its earlier publication on March 27, 2012. Additional comments will now be accepted until September 21, 2012.

3. Republican Party Platform Supports More STEM Visas and Includes Consideration of Guestworker Provision – Among other things, the platform supports granting more work visas to holders of advanced degrees in science, technology, engineering, or math.

4. Labor Dept. Proposes Reorganizing Applications for Prevailing Wage Determination and Temporary Employment Certification – The ETA has proposed reorganizing ETA Form 9141, Application for Prevailing Wage Determination; ETA Form 9142, Application for Temporary Employment Certification; and the H-2A Certification Letter With Notification.

5. USCIS Releases Guidance on Accommodating Religious Beliefs When Capturing Photographs and Fingerprints – If removal of headwear or adjustments are needed, such as a same-gender photographer or fingerprint-taker, USCIS will offer a private or screened area, if available. If such an area is not available, USCIS will offer to reschedule the appointment.

6. CBP Discontinues Admission Stamps on Forms for F, M, J International Students and Scholars – If a state benefit-granting agency rejects an unstamped Form I-20/DS-2019, applicants may make an appointment with USCIS online through InfoPass and take their I-20/DS-2019 to their local USCIS office to be stamped. This transitional step will end on November 21, 2012.

7. State Dept. Announces Numerical Limits for Immigrants in FY 2012 – The worldwide employment-based preference limit for fiscal year 2012 is 144,951, and the family-sponsored preference limit is 226,000.

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links

Details:

1. USCIS Submits Emergency Requests to OMB for Deferred Action-Related Forms; ICE Agents File Lawsuit

U.S. Citizenship and Immigration Services (USCIS) has submitted information collection requests to the Office of Management and Budget (OMB) for “emergency” consideration related to the new deferred action program.

The Form I-821D, Consideration of Deferred Action for Childhood Arrivals, will be used for those who are considered for relief from removal from the United States or from being placed into removal proceedings as part of the deferred action for childhood arrivals process. Those who submit requests with USCIS and demonstrate that they meet the threshold guidelines may have removal action in their case deferred for a period of two years, subject to renewal (if not terminated), based on an individualized, case-by-case assessment of the individual’s equities.

USCIS estimates that 1,041,300 respondents will use this form and that it will take 2 hours and 45 minutes to complete. The OMB notice for this form, which includes instructions on submitting comments, is available HERE. Comments will be accepted until September 17, 2012.

USCIS also has submitted an emergency request to the OMB for a revision of Form I-765, Application for Employment Authorization. The OMB notice for this form, which includes instructions on submitting comments, is available HERE. Comments will be accepted until September 17, 2012.

Individuals requesting consideration of deferred action for childhood arrivals must submit:

• Form I-821D, Consideration of Deferred Action for Childhood Arrivals
• Form I-765, Application for Employment Authorization (with accompanying fees; the total is $465, including the biometrics fee and issuance of a secure employment authorization document); and
• I-765WS Worksheet (to establish economic need for employment).

USCIS recently developed a series of related resources, including a website. Related announcements are available:

USCIS Begins Accepting Requests for Consideration of Deferred Action for Childhood Arrivals

USCIS Publishes Forms for Consideration of Deferred Action for Childhood Arrivals

DHS Outlines Deferred Action for Childhood Arrivals Process

Meanwhile, a group of 10 U.S. Immigration and Customs Enforcement (ICE) agents have filed a lawsuit against the new deferred action directive on undocumented childhood arrivals. The agents argue that the new program forces them to violate immigration law.

Kansas Secretary of State Kris Kobach, an advisor to Mitt Romney’s presidential campaign, is representing the agents in the lawsuit filed in federal court in Dallas, Texas, against Janet Napolitano, Secretary of Homeland Security, and John Morton, ICE Director. The lawsuit is receiving financial support from NumbersUSA. “This Directive not only circumvents Congress, it also infringes on the plaintiffs’ ability to fulfill the oath they made to uphold the laws of this country. The plaintiffs seek to prevent law enforcement officers from being forced to either violate federal law if they comply with the Directive or risk adverse employment action if they disobey the unlawful orders of the DHS Secretary,” Secretary Kobach said.

Also, Texas Governor Rick Perry sent a letter to Greg Abbott, Texas Attorney General, asserting that Secretary Napolitano’s action was “a slap in the face to the rule of law and our Constitutional framework of separated powers” and “unilaterally undermine[s] the law.” Governor Perry said he was writing to ensure that “all Texas agencies understand that Secretary Napolitano’s actions confer absolutely no legal status whatsoever” to anyone who qualifies for deferred action. “In Texas, our legislature has passed laws that reflect the policy choices that they believe are right for Texas. The secretary’s directive does not undermine or change our state laws, or any federal laws that apply within the State of Texas,” he said.

Governor Perry’s Letter

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2. USCIS Allows 30 Additional Days for Public Comment on Revised I-9

U.S. Citizenship and Immigration Services (USCIS) announced that it is allowing an additional 30 days for public comment on the revised I-9 form. USCIS received over 6,200 comments in response to its earlier publication on March 27, 2012. Additional comments will now be accepted until September 21, 2012.

USCIS previously announced that employers should continue to use the current I-9 employment eligibility verification form even after the August 31, 2012, Office of Management and Budget control number expiration date passes.

The notice announcing the extension of the comment period, which includes instructions on submitting comments, is available HERE.

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3. Republican Party Platform Supports More STEM Visas and Includes Consideration of Guestworker Provision

The Republican Party’s platform for 2012, which was formally approved at the Republican National Convention during the last week in August, supports granting more work visas to holders of advanced degrees in science, technology, engineering, or math (STEM) from other nations. The platform also supports encouraging foreign students who graduate from an American university with an advanced STEM degree to remain in the United States.

The platform also states that a Republican administration and Congress would partner with local governments through cooperative enforcement agreements and “will consider, in light of both current needs and historic practice, the utility of a legal and reliable source of foreign labor where needed through a new guest worker program.”

The platform states that the presence of “millions of unidentified persons” poses grave risks to the safety and sovereignty of the United States. “Our highest priority, therefore, is to secure the rule of law both at our borders and at ports of entry.” The platform supports Republican legislation to give the Department of Homeland Security long-term detention authority “to keep dangerous but undeportable aliens off our streets,” along with expediting expulsion of criminal aliens and making gang membership a deportable offense.

The platform opposes “any form of amnesty.” It supports the mandatory use of the Systematic Alien Verification for Entitlements (SAVE) program before granting any State or federal government entitlement or IRS refund. The platform “insist[s] upon enforcement at the workplace through verification systems so that jobs can be available to all legal workers. Use of the E-Verify program – an Internet-based system that verifies the employment authorization and identity of employees – must be made mandatory nationwide.” The platform also supports state enforcement efforts in the workplace.

“State efforts to reduce illegal immigration must be encouraged, not attacked,” the platform says. “The pending Department of Justice lawsuits against Arizona, Alabama, South Carolina, and Utah must be dismissed immediately. The double-layered fencing on the border that was enacted by Congress in 2006, but never completed, must finally be built. In order to restore the rule of law, federal funding should be denied to sanctuary cities that violate federal law and endanger their own citizens, and federal funding should be denied to universities that provide in-state tuition rates to illegal aliens, in open defiance of federal law.”

The platform also supports English as the nation’s official language.

Full Text of the Republican Party Platform for 2012

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4. Labor Dept. Proposes Reorganizing Applications for Prevailing Wage Determination and Temporary Employment Certification

The Department of Labor’s Employment and Training Administration (ETA) has proposed reorganizing ETA Form 9141, Application for Prevailing Wage Determination; ETA Form 9142, Application for Temporary Employment Certification; and the H-2A Certification Letter With Notification.

Specifically, the Department is soliciting comments concerning the collection of data in the following information collections: Office of Management and Budget (OMB) Control Number 1205-0466, currently containing ETA Form 9141, Application for Prevailing Wage Determination, and ETA Form 9142, Application for Temporary Employment Certification, which expires on October 31, 2012; and OMB Control Number 1205-0404 containing the H-2A Certification Letter known as ETA-9144.

The Department proposes to divide 1205-0466 into three distinct information collection requests (ICRs), segregated by program, and to merge 1205-0404 into the collection that remains in 1205-0466. The Department proposes to separate out ETA Form 9141, Application for Prevailing Wage Determination, into its own collection, 1205-NEW2. The Department also proposes to divide the ETA Form 9142, Application for Temporary Employment Certification, into two collections. One would remain as 1205-0466 and would contain the ETA Form 9142A, H-2A Application for Temporary Employment Certification and Appendix A, along with other information collection burdens for the H-2A Temporary Labor Certification Program, while the second would become 1205-NEW1 and contain ETA Form 9142B, H-2B Application for Temporary Employment Certification and Appendix B, along with all the information collection burdens for the H-2B Temporary Labor Certification Program. Once separated, 1205-0404, which contains one additional information collection burden for the H-2A program, would be merged with 1205-0466 so that most of the H-2A materials can be accounted for in one ICR.

The Department said it is using this opportunity to separate the collections into “more manageable and easy to understand ICRs.”

Comments will be accepted by October 15, 2012. The notice, which includes instructions on submitting comments, is available HERE.

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5. USCIS Releases Guidance on Accommodating Religious Beliefs When Capturing Photographs and Fingerprints

U.S. Citizenship and Immigration Services (USCIS) recently released policy guidance on accommodating religious beliefs during fingerprint and photograph capture. Among other things, the guidance notes that USCIS will accommodate an individual who wears headwear as part of his or her religious practices. Religious headwear may be worn if a reasonable likeness can be obtained from an individual, the full face is visible, and the religious headwear does not cast a shadow on the face. If removal of headwear or adjustments are needed, such as a same-gender photographer or fingerprint-taker, USCIS will offer a private or screened area, if available. If such an area is not available, USCIS will offer to reschedule the appointment.

Notice

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6. CBP Discontinues Admission Stamps on Forms for F, M, J International Students and Scholars

As of August 10, 2012, U.S. Customs and Border Protection (CBP) no longer provides admission stamps on Forms I-20/DS-2019 for prospective and returning international students and scholars (traveling on F, M, and J visas) seeking admission to the United States. CBP said this change makes CBP processes consistent with U.S. Citizenship and Immigration Services’ (USCIS) recent change to stop stamping Forms I-20/DS-2019.

USCIS implemented this change as part of the launch of the USCIS Electronic Immigration System.

CBP noted that placing an admission stamp on Forms I-20/DS-2019 has been a longstanding practice at CBP, but it is not required. Although the admission stamps on Forms I-20/DS-2019 are not indicators of lawful status or academic program duration, some state and federal benefit-granting agencies have required international students and scholars to present stamped versions. State requirements vary.

If a state benefit-granting agency rejects an unstamped Form I-20/DS-2019, applicants may make an appointment with USCIS online through InfoPass and take their I-20/DS-2019 to their local USCIS office to be stamped. This transitional step will end on November 21, 2012.

Notice

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7. State Dept. Announces Numerical Limits for Immigrants in FY 2012

The Department of State determines worldwide numerical limitations on visa issuances, based in part on data provided by U.S. Citizenship and Immigration Services (USCIS). On August 8, 2012, USCIS provided the required data to the Department’s Visa Office. The Department has determined that the worldwide employment-based preference limit for fiscal year 2012 is 144,951, and the family-sponsored preference limit is 226,000. The per-country limit is fixed at 7 percent of the family and employment annual limits; for FY 2012, the per-country limit is 25,967. The dependent area annual limit is 2 percent, or 7,419.

The Visa Bulletin for September 2012, which includes the cut-off dates for employment-based and family-based visa numbers, is available HERE.

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8. New Publications and Items of Interest

New Yorker article on skilled immigration. The New Yorker has published a commentary on the need for high-skilled immigration, noting among other things that many of the best foreign Olympic athletes were trained in the United States.

USCIS national engagements. U.S. Citizenship and Immigration Services (USCIS) will host several upcoming public engagements:

• On September 13, 2012, USCIS will hold a public engagement on Service Center operations for refugee and asylum stakeholders. Subject matter experts from the Refugee, Asylum and International Operations Directorate, Texas and Nebraska Service Centers, and the National Visa Center will provide information and answer questions on refugee and asylum issues. The TSC will also offer tours of the USCIS Lockbox facility in Lewisville, Texas; the records facility in Mesquite, Texas; and the Dallas District Office on Wednesday, September 12. Registration for the in-person conference will be limited to 200 attendees. See HERE.
• On October 16, 2012, USCIS will hold a public engagement (in-person in Washington, DC, and via teleconference) for EB-5 immigrant investor stakeholders. See HERE.

Notes from Previous Engagements by Topic

Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, recently 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 issue.

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. Green Card Stories is also featured on National Public Radio’s photo blog.

For more information or to order, visit Green Card Stories.

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

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9. Member News

Cyrus Mehta has published several new blog entries. “They Still Have Their Dream: Lawsuit Against Dreamers Will Go Nowhere” “Nightmare in Arizona: Governor Brewer’s Nonsensical and Mean-Spirited Executive Order Against Dreamers”

Angelo Paparelli has published several new blog entries. “The EB-5 Investor Immigration Program: Green Shoots or Chutes and Ladders?” “Immigration Brainstorming and DREAMstorming”

Larrabee, Mehlman, Albi, Coker LLP has been certified by the National Women Business Owners Corporation (NWBOC). The NWBOC grants certification after a thorough review of a company’s ownership, control, and general business practices. Certification enables women-owned businesses to develop relationships with a greater diversity of companies and creates opportunities for future partnerships.

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10. Government Agency Links

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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. EB-5 Immigrant Investor Update: New Office; Stats, Summary Released – USCIS has announced formation of a new EB-5 program office. Also, USCIS released FY 2012 third-quarter statistics at its stakeholder call in July, and released a summary of questions and answers from the previous stakeholder meeting in May. USCIS also announced that it plans to release a new version of its draft EB-5 policy memo soon.

2. DOL Reaches Agreement Resulting in Record Back Wage Amount for H-2A Temporary Agricultural Workers – Peri & Sons, a Nevada-based onion grower, has agreed to pay a record total of $2,338,700 in back wages to 1,365 workers, along with a civil money penalty of $500,000, for violations under the H-2A program.

3. Senate Holds Hearing on Student Visa System – Discussed at the hearing were findings from the GAO’s June 2012 report assessing ICE’s oversight of the Student and Exchange Visitor Program.

4. Global Entry Program Expands to Ireland’s Shannon and Dublin Airports – Global Entry kiosks are now available in CBP preclearance facilities at Ireland’s Shannon and Dublin airports.

5. ABIL Global: Turkey – Turkey moves toward stricter employer qualifications to sponsor work permits.

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. EB-5 Immigrant Investor Update: New Office; Stats, Summary Released

U.S. Citizenship and Immigration Services (USCIS) has announced formation of a new EB-5 program office. Also, USCIS released the latest third-quarter statistics on its stakeholder call in late July, and released a summary of questions and answers from the previous stakeholder meeting in May. USCIS also announced that it plans to release a new version of its draft EB-5 policy memo soon. Highlights of the latest developments are included below.

New EB-5 program office. On July 18, 2012, USCIS Director Alejandro Mayorkas announced the creation of a new office to oversee administration of the EB-5 immigrant investor visa program. The office will be led by a new Chief of Immigrant Investor Programs. The position opening was announced the same day.

Director Mayorkas noted that the EB-5 program “has spurred the creation of tens of thousands of new jobs and the injection of billions of dollars into the U.S. economy since Congress created the program in 1990.” Interest in the EB-5 program has grown exponentially in recent years, he noted, both from domestic project developers seeking capital and foreign investors who have the capital that can fuel economic growth.

In fiscal year (FY) 2012 to date, USCIS approved more than 3,000 Form I-526 (Immigrant Petition by Alien Entrepreneur) petitions. Director Mayorkas said this was more than triple the number approved in all of FY 2009. “Since 2009, we have quadrupled the size of the EB-5 adjudications team and brought on board eight expert economists dedicated to the EB-5 program to ensure that EB-5 cases are handled expeditiously and with appropriate expertise.”

By the end of July, a Review Board consisting of two Supervisory Immigration Services Officers and one economist “will review every pending application for regional center designation for which a denial has been recommended, with applicants receiving the opportunity to discuss their cases in-person before any final adverse decision is rendered,” Director Mayorkas said.

Announcement

Third-quarter statistics. USCIS said it has approved over 3,000 I-526 (Immigrant Petition by Alien Entrepreneur) petitions so far this year, and that the number of I-829 (Petition by Entrepreneur to Remove Conditions) filings has decreased. USCIS expects to see more filed in the fourth quarter.

According to the latest EB-5 program statistics based on preliminary data for the third quarter of FY 2012, USCIS received 4,156 I-526 (Immigrant Petition by Alien Entrepreneur) petitions and had approved 3,002 and denied 775 so far. This was a 79 percent approval rating, compared to an 81 percent approval rating for all of FY 2011 and an 89 percent approval rating for all of FY 2010. As of the third quarter of FY 2012, USCIS had received 546 I-829 (Petition by Entrepreneur to Remove Conditions) petitions and had approved 639 and denied 42 so far. This was a 94 percent approval rating, nearly matching a 96 percent approval rating for all of FY 2011 and exceeding an 83 percent approval rating for FY 2010.

USCIS approved 209 regional centers as of the third quarter. Full List of Regional Centers

The next USCIS stakeholder engagement meeting is scheduled for October 16, 2012, in Washington, DC. See HERE for additional details on the engagement meetings.

Summary of May stakeholder meeting. After USCIS’s EB-5 stakeholders meeting held on May 1, 2012, attendees lamented that the agency provided little substantive information and did not answer many submitted questions. Over 250 people attended in person, and over 300 listened by phone. USCIS subsequently released a summary of the meeting that provided additional information, presumably based on written questions that were submitted to the agency.

Summary of May Stakeholder Engagement Meeting

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2. DOL Reaches Agreement Resulting in Record Back Wage Amount for H-2A Temporary Agricultural Workers

Peri & Sons, a Nevada-based onion grower, has agreed to pay a record total of $2,338,700 in back wages to 1,365 workers, along with a civil money penalty of $500,000, for violations under the H-2A temporary agricultural worker program.

An investigation by the Department of Labor’s Wage and Hour Division determined that workers employed by Peri & Sons involved in irrigation, as well as in harvesting, packing, and shipping onions sold in grocery stores nationwide, were not paid properly for work performed. All of the workers came to the United States from Mexico under the H-2A temporary agricultural worker visa program. In most cases, their earnings fell below the hourly wage required by the program, as well as below the federal minimum wage of $7.25 per hour for a brief period of time. Investigators also found that workers were not paid for time spent in mandatory pesticide training or reimbursed for subsistence expenses while traveling to and from the United States. Additionally, their return transportation costs at the end of the contract period were not paid as required.

Fact Sheet on H-2A Requirements

Press Release Announcing the Agreement

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3. Senate Holds Hearing on Student Visa System

The Senate’s Subcommittee on Immigration, Refugees and Border Security held a hearing on July 24, 2012, on “Strengthening the Integrity of the Student Visa System by Preventing and Detecting Sham Educational Institutions.” Witnesses included Rebecca Gambler, Director, Homeland Security and Justice, U.S. Government Accountability Office (GAO), and John Woods, Assistant Director for National Security Investigations, U.S. Immigration and Customs Enforcement (ICE).

Ms. Gambler discussed findings from the GAO’s June 2012 report assessing ICE’s oversight of the Student and Exchange Visitor Program (SEVP). The GAO reported that ICE does not have a process to identify and assess risks posed by schools in SEVP. Specifically, SEVP does not (1) evaluate program data on prior and suspected instances of school fraud and noncompliance, or (2) obtain and assess information from Counterterrorism and Criminal Exploitation Unit (CTCEU) and ICE field office school investigations and outreach events.

Moreover, the GAO found weaknesses in ICE’s monitoring and oversight of SEVP-certified schools that contribute to security and fraud vulnerabilities. For example, the GAO noted that ICE has not consistently implemented internal control procedures for SEVP in the initial verification of evidence submitted in lieu of accreditation. In addition, ICE has not consistently followed the standard operating procedures that govern the communication and coordination process among SEVP, CTCEU, and ICE field offices.

The GAO recommended that ICE, among other things, identify and assess program risks, consistently implement procedures for ensuring schools’ eligibility, and revise its standard operating procedure to specify which information to share among stakeholders during criminal investigations. Ms. Gambler reported that ICE concurred with all the recommendations the GAO made and “has actions planned or under way to address them.”

Mr. Woods said that ICE has already made progress in implementing the GAO’s recommendations. He noted that ICE’s CTCEU is “the first national program dedicated to the enforcement of nonimmigrant visa violations.” SEVP and CTCEU execute complementary missions to regulate foreign students and exchange visitors and to proactively develop investigations that bolster national security, he said.

Mr. Woods noted that each year, CTCEU “analyzes the records of hundreds of thousands of potential status violators using information from SEVIS and the United States Visitor and Immigrant Status Indicator Technology database, along with other information.” The CTCEU resolves these records “by further identifying potential violations that would warrant field investigations, establishing compliance, or establishing departure dates from the United States. Since the creation of the CTCEU in 2003, analysts have resolved more than two million such records.”

Ms. Gambler’s testimony is available in “Student and Exchange Visitor Program: DHS Needs to Take Actions to Strengthen Monitoring of Schools“.

Mr. Woods’ Testimony

Main Hearing Page (including a link to a webcast of the hearing)

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4. Global Entry Program Expands to Ireland’s Shannon and Dublin Airports

U.S. Customs and Border Protection (CBP) announced on July 26, 2012, that Global Entry kiosks are now available in CBP preclearance facilities at Ireland’s Shannon and Dublin airports. The Global Entry program allows expedited clearance for pre-approved, low-risk travelers upon arrival in the United States. Current Global Entry members can begin using these new kiosks immediately.

The Global Entry program is now available at 37 U.S. and preclearance airports. Over the last four years, CBP has enrolled more than 378,000 members in Global Entry, with more than 1.1 million travelers receiving Global Entry benefits. Travelers have used the kiosks more than 2.7 million times.

Travelers who use Global Entry kiosks on average experience reduced wait times of 70 percent over travelers going through traditional passport inspection, and more than 75 percent of travelers using Global Entry are processed in under five minutes, according to CBP.

The program is available to U.S. citizens, U.S. lawful permanent residents, and pre-approved Mexican nationals. In addition, citizens of the Netherlands may apply under a special reciprocal arrangement that links Global Entry with the Dutch Privium program. In a recently implemented arrangement, the Republic of Korea’s Smart Entry Service program has been linked to Global Entry, allowing Korean citizens to participate in Global Entry. Canadian citizens and residents may participate in Global Entry through membership in the NEXUS program.

Applications for Global Entry must be submitted online using the CBP Global Online Enrollment System (GOES). A non-refundable fee of $100 is also collected via the website for a five-year membership in Global Entry. CBP will review the applicant’s information and conduct a background investigation. The applicant must complete an in-person interview at a CBP enrollment center, at which time fingerprints are collected.

GOES

Announcement

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5. ABIL Global: Turkey

Turkey moves toward stricter employer qualifications to sponsor work permits.

Historically, obtaining work permits in Turkey meant adjudication periods of three to nine months, requests for documents without explanation, and a lack of transparency of requirements by the Work Permit Directorate (Directorate). In 2010 the Turkish government made a bold effort to change the work permit regime. In the same year it also chose to enact employer qualifications for the entity that wished to sponsor a work permit. This was a relatively new concept in Turkey. Since implementation, the Directorate has attempted to create exemptions.

On July 29, 2010, the Directorate published a communique that requires an employer to have at least five Turkish citizen employees per registered worksite per foreign applicant as evidenced on payroll records (termed 5:1 ratio). The communique also requires that the employer’s paid in capital must be at least 100,000 Turkish Lira (TL). Alternatively, the employer can show either gross (assumedly annual) sales amounting to 800,000 TL annually or exports with a gross annual value of USD $250,000. The current exchange rate is 1.8 TL to 1 USD.

The 5:1 ratio has been particularly burdensome to employers. This is partially because the ratio must be evident at each worksite. Therefore, work permit applications will be denied if they do not evidence a 5:1 ratio of Turks to foreigners at the worksite selected for the foreigner (the worksite location is normally specified on social security records). Soon after the publication of the employer criteria, the Directorate was confronted with many employers who could no longer sponsor foreigners. In an attempt to ameliorate the impact of the 5:1 ratio requirement, the Directorate published the following exemptions on April 25, 2011:

1. Founder/investor of a newly established legal entity: If such a founder/investor owns at least 20% (but amounting to at least 40,000 TL) worth of shares of the entity, and within 6 months, the five employee criteria can be met, the founder/investor is exempt.
2. Technical specialists: If there is evidence the position that is the subject of the work permit application requires advanced technology and a Turkish national specialist cannot be found, both the 5:1 employee ratio and the capital requirement will not apply.
3. For companies that satisfy the foreign direct Investment requirements, the 5:1 ratio will be applied by taking into consideration every employee of all the company’s worksites in Turkey. Also, if the foreign employee is a “key personnel” under this law, the Directorate may not count him or her in the 5:1 ratio.
4. Government involvement: When the foreigner will work on a product or service procurement for public institutions or is pursuant to a public tender, or when the work permit application is subject to a bilateral or multilateral agreement to which Turkey is a party, both the 5:1 ratio and capital requirement will not apply.

The Work Permit Directorate has not yet published guidance on the evidence to be presented to qualify for these exemptions. Although these exemptions have been published and available for over a year, the exemptions are not sufficient to meet the legitimate business needs of companies.

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6. New Publications and Items of Interest

Foreign labor certification statistics. The Department of Labor’s Office of Foreign Labor Certification (OFLC) has posted updated program fact sheets presenting selected fiscal year 2012 statistics for the permanent labor certification, prevailing wage determination, H-1B temporary visa, H-2A temporary agricultural visa, and H-2B temporary nonagricultural visa programs. Also, the OFLC has created a web page from which users can access performance data, including Annual Reports, Selected Statistics by Program, and Disclosure Data. The fact sheets and web page link are available HERE.

USCIS multilingual resources. U.S. Citizenship and Immigration Services (USCIS) has launched an online Multilingual Resource Center, which provides a central location for USCIS resources in a variety of languages, including Haitian Creole, Polish, and Vietnamese. Materials are available in 22 languages, including information on USCIS application processes and frequently asked questions. The site includes a new Spanish translation of The Handbook for Employers: Instructions for Completing Form I-9. Another feature of the new site is the introduction of 13 newly translated How Do I… guides in Chinese. ANNOUNCEMENT. The Multilingual Resource Center.

Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, released on May 31, 2012, 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 issue.

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. Green Card Stories is also featured on National Public Radio’s photo blog.

For more information or to order, visit Green Card Stories.

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

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7. Member News

Cyrus Mehta was quoted by NDTV in an article on the Infosys whistleblower case and related visa issues. Mr. Mehta discussed the B-1 in lieu of H-1B visa program and the ambiguity in the law concerning B-1 visas.

Mr. Mehta recently published a new blog entry. “Crime Without Punishment: Have You Ever Committed a Crime For Which You Have Not Been Arrested?”

Angelo Paparelli was named a Top Labor & Employment Attorney by the Los Angeles and San Francisco Daily Journal, for the second consecutive year. Mr. Paparelli told the Daily Journal that his mission is to “help American people see that the cornerstone of our exceptionalism is our willingness to accept immigrants as equal human beings and allow them to contribute and become citizens and achieve the American dream while they help us to achieve the American dream.” He cautioned, however, that, “we need to protect the borders and make sure we have intelligent policies in place that let the right people in and keep the wrong people out.”

Mr. Paparelli also recently co-wrote “Foreigners on U.S. Soil: To Know Your Rights Is To Know Very Little.” The article was published by the New York Law Journal.

Mr. Paparelli recently published a new blog entry. “Immigration’s Mad Men (and Women)”

Stephen Yale-Loehr was quoted in the Atlanta Journal-Constitution on July 26, 2012, in the article, “Investors Can Earn Shot at Green Card.” Mr. Yale-Loehr said the EB-5 investor program “creates jobs for U.S. workers at no expense to the taxpayer, so it will be renewed.” He founded the Association to Invest in the USA, which represents regional centers that organize EB-5 investment projects.

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8. Government Agency Links

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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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