Headlines:

1. Supreme Court Strikes Down Most Provisions of Arizona’s Immigration Enforcement Law – The Supreme Court struck down most provisions of Arizona’s 2010 immigration-related law, allowing to stand one provision requiring police to verify immigration status in certain circumstances.

2. Continued Heavy Demand in Employment Second Preference Category Leads to Worldwide Cut-Off Date for July – Continued heavy demand for visa numbers in the employment second preference category has required the establishment of a January 1, 2009, worldwide cut-off date for July.

3. DOL Announces Address Change for Filing, Processing Temporary Labor Certifications – Effective August 2, 2012, the Chicago National Processing Center address and contact info will change.

4. Grassley Letter Challenges President’s Authority To Implement Deferred Action – Sen. Charles Grassley (R-Iowa) and a group of other Republicans are challenging President Obama’s authority to implement deferred action and work authorization for certain children of undocumented persons based on prosecutorial discretion.

5. Georgia Technology Company Agrees to Pay $741,288 in Back Wages to 73 H-1B Workers – Semafor Technologies LLC has agreed to pay 73 employees $741,288 in back wages following an investigation by the Department of Labor’s Wage and Hour Division that found violations of the H-1B visa program.

6. Multi-State Prostitution Ring Dismantled – The perpetrators acquired women to act as prostitutes, on many occasions smuggling them into the United States from Mexico and Central America.

7. Appeals Court Denies Petition for Review, Upholds BIA Decision of Abandonment of LPR Status – The U.S. Court of Appeals for the Sixth Circuit denied the petition for review, holding that intent alone is insufficient to maintain LPR status and that her extended periods in Pakistan supported the BIA’s finding that she had abandoned her status.

8. ABIL Global: Belgium – Belgium is working on implementation of the EU Blue Card directive; there is an increasing focus on compliance; and a potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions.

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

10. Member News – Member News

11. Government Agency Links – Government Agency Links

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Details:

1. Supreme Court Strikes Down Most Provisions of Arizona’s Immigration Enforcement Law

On June 25, 2012, the Supreme Court struck down most provisions of Arizona’s immigration-related law, allowing to stand one provision requiring police to verify the immigration status in certain circumstances of those they have stopped, detained, or arrested and whom they suspect may not be in the United States legally. The provisions that were struck down included requiring immigrants to carry documentation, making seeking or engaging in unauthorized work a state misdemeanor crime, and allowing warrantless arrests of suspected undocumented persons who may have committed a removable offense. The Court noted that the federal government is responsible for immigration and removal.

Five other states (Alabama, Georgia, Indiana, South Carolina, and Utah) have similar laws, which may be challenged following the Supreme Court outcome.

The Decision

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2. Continued Heavy Demand in Employment Second Preference Category Leads to Worldwide Cut-Off Date for July

Continued heavy demand for visa numbers in the employment second preference category has required the establishment of a January 1, 2009, worldwide cut-off date for the month of July. The Department of State’s Visa Bulletin for July says that this action has been taken in an effort to hold number use within the annual numerical limit. “Should there be an increase in the current demand pattern, it may be necessary to make this category completely ‘unavailable’ prior to September 30, 2012,” the bulletin warns.

The China and India employment second preference categories are already unavailable, and will remain so for the remainder of the fiscal year.

July Visa Bulletin

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3. DOL Announces Address Change for Filing, Processing Temporary Labor Certifications

Effective August 2, 2012, the Chicago National Processing Center (NPC) address and contact info will change:

• Old Address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 536 South Clark Street, 9th Floor, Chicago, IL  60605-1509.
• New Address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 11 West Quincy Court, Chicago, IL  60604-2105; telephone: (312) 886-8000; facsimile: 312-353-8830.
• New Address in connection with fees: The following address is to be used for all invoices/fees submitted in connection with the H-2A program: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, P.O. Box A3804, Chicago, IL 60690-A3804.

On August 2, 2012, the Chicago NPC is expected to be fully functional in the new location. For three weeks after that date, the Chicago NPC will receive via courier all written correspondence submitted to the former address. On August 23, 2012, the courier will cease to operate and all submissions to the former address of the Chicago NPC will be returned to the sender. The address above for the collection of H-2A fees should be used beginning on August 2.

Notice

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4. Grassley Letter Challenges President’s Authority To Implement Deferred Action

Sen. Charles Grassley (R-Iowa) and a group of other Republicans sent a letter on June 19, 2012, challenging President Obama’s authority to implement deferred action and work authorization for certain children of undocumented persons based on prosecutorial discretion. The Obama administration announced the new program in a directive from the Secretary of Homeland Security, Janet Napolitano, issued on June 15. “Not only do we question your legal authority to act unilaterally in this regard, we are frustrated that you have intentionally bypassed Congress and the American people,” the letter states.

The letter also expresses concerns that the directive allows individuals under the age of 30 to obtain work authorization, citing the Bureau of Labor Statistics in noting that the unemployment rate for young adults aged 16 to 24 has been nearly 17 percent for the past year. The letter states that “[i]t is astonishing that your administration would grant work authorizations to illegal immigrants during this time of record unemployment.”

The letter poses a number of “serious questions” and asks for responses and “any relevant documentation related to this directive” by July 3, 2012.

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5. Georgia Technology Company Agrees to Pay $741,288 in Back Wages to 73 H-1B Workers

Semafor Technologies LLC, a Norcross, Georgia, technology company, has agreed to pay 73 employees $741,288 in back wages following an investigation by the Department of Labor’s Wage and Hour Division that found violations of the H-1B visa program. The company specializes in software development, on-site/off-site application outsourcing, infrastructure, consulting, and product development services.

Notice

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6. Multi-State Prostitution Ring Dismantled

Gregorio Hernandez-Castilla of Indianapolis, Indiana, was sentenced recently to 41 months in prison after pleading guilty to conspiring to operate an interstate prostitution ring with his two brothers. The prosecution was the result of an extensive investigation by multiple law enforcement agencies.

The three brothers headed the Hernandez-Castilla criminal organization, which had been operating for a number of years in the Indianapolis area, largely under the direction of Jose Luis Hernandez-Castilla. The brothers would acquire women to act as prostitutes, on many occasions smuggling them into the United States from Mexico and Central America. Once here, many were often without any means of support, and thus would engage in prostitution to pay off debts they owed the brothers for subsidizing their entry into the country.

In addition, the brothers directed another group of individuals who acted as local managers by running prostitution operations out of apartments and houses located throughout Indianapolis and in surrounding states, including Michigan, Illinois, and Ohio. The women engaged in prostitution were rarely allowed to stay in any one location for more than a week, and the operation employed numerous drivers who would transport the women from one site to another on a regular basis.

The organization operated almost exclusively within the Hispanic community, the Department of Homeland Security reported, advertising its services through the distribution of business cards bearing advertisements and telephone numbers for auto repair or western wear outfitters. These business cards were known within the Hispanic community as contact numbers for arranging appointments with prostitutes.

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7. Appeals Court Denies Petition for Review, Upholds BIA Decision of Abandonment of LPR Status

In Lateef v. Holder, the petitioner argued that despite multiple long absences from the United States, she did not intend to abandon her lawful permanent resident (LPR) status, which also served as the foundation for her husband’s and child’s entry into the United States. The U.S. Court of Appeals for the Sixth Circuit denied the petition for review, holding that intent alone is insufficient to maintain LPR status and that her extended periods in Pakistan, including her final trip that lasted a year and three months, supported the BIA’s finding that she had abandoned her LPR status. The court also noted that the petitioner had lied in one instance to border officials about the date of her last visit to the United States.

Circuit Judge Jane B. Stranch dissented, noting among other things that errors by U.S. immigration officials were responsible for at least some of the delays in her returning, and that the petitioner’s daughter in Pakistan had emotional and physical problems that compelled her to spend time in Pakistan to care for her.

Decision

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8. ABIL Global: Belgium

Belgium is working on implementation of the European Union (EU) Blue Card directive; there is an increasing focus on compliance; and a potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions.

Work Permits; Implementation of the EU Blue Card Directive

The Belgian work permit system is a very business-friendly model in practice. The “regular” work permit, with a resident labor test, has become very rare in the corporate immigration context. “Fast-track” work permits, without a resident labor test, can be obtained quite fast, within two to three weeks after the date of filing of the application.

The economic recession has not led to drastic changes to the Belgian work permit system. However, one protective measure, regarding Bulgarian and Romanian nationals, should be mentioned:

• In principle, European Union (EU) nationals may work in Belgium without work permits, on the basis of the right of free movement of workers.
• For Bulgaria and Romania, which joined the EU on January 1, 2007, restrictions on this right of free movement of workers were maintained during an initial transition term until the end of 2008. That was prolonged for another three years, until December 31, 2011. The Belgian government has decided to continue the restrictions until December 31, 2013. As a rationale for this decision, the government explicitly referred to the expected economic recession in 2012/2013 as well as to similar decisions of neighboring countries to maintain the restrictions.

In other developments, the Belgian Parliament and the Minister of Employment are currently working on implementation of the EU Blue Card Directive.

The available texts indicate that the Blue Card will exist alongside the current fast-track work permit B for highly skilled employees. The salary threshold for a Blue Card in 2012 will probably be €49,995, which is higher than the current threshold for a highly skilled work permit B (€37,721 for 2012).

The Belgian authorities will probably choose not to take professional experience into account to prove “higher professional qualifications,” but a higher education will be required, on condition that the studies needed to acquire it lasted at least three years. Belgium will probably not apply numerical limits.

Focus on Compliance

New Code on Labour and Social Security Criminal Law. A new Code on Labour and Social Security Criminal Law took effect on July 1, 2011. It mainly codifies existing compliance rules with regard to labor and social security law-related issues, including employment of foreigners, but also creates new compliance rules.

Unauthorized/illegal employment of a foreigner who is not entitled to live in Belgium more than three months is among the infringements that are considered very serious (“type 4” infringements).

The potential penalties for such infringement include a jail term of six months to three years and/or a criminal fine between €3,600 and €36,000 per employee, with a maximum of €3,600,000 (€36,000 x 100). Furthermore, the employer may be prohibited from operating the business for a limited time, between one month and three years. The court may also order closure of the company for the same duration.

The same two accompanying penalties (prohibition from operating the business and closure of the company for a limited time, between one month and three years) may be imposed upon “HR advisors,” largely defined as professionals providing advice or help to one or more employers or employees with regard to the carrying out of obligations as sanctioned by the Code, either for their own account or within an entity. According to some comments to the Code, HR consultants and payroll personnel are included in this category, but probably not lawyers or notary publics (although they may risk being an accomplice to an infringement). The courts can only impose these two accompanying penalties if they are deemed necessary to stop an infringement or to avoid repeat offending, provided that they are in proportion with overall socio-economic interests.

If the Public Prosecutor determines that this infringement does not justify criminal prosecution, an administrative fine may be imposed, ranging between €1,800 and €18,000 per employee, with a maximum of €1,800,000 (€18,000 x 100).

The Belgian authorities are working on implementation of the EU Illegals Employment Directive. A first proposal of an Act has been prepared but the text is not yet publicly available. The new Act may include the following:

• The basic principle is that employers cannot employ a person who is not an EU citizen, who does not enjoy the right of free movement, and who is present on the Belgian territory, without that person meeting the requirements for stay or residence in Belgium. The employer must check the residence documents of the potential employee before employment. Furthermore, the employer must keep a copy of these documents available for inspection and notify the competent authorities of the start of the employment.
• The new Act provides effective, proportionate, and dissuasive sanctions against employers who employ unauthorized third-country nationals in Belgium. These include general financial and criminal sanctions. The employer may also be liable to pay any outstanding remuneration to the employee. Finally, the employer may be required to pay taxes and social security contributions to Belgium.
• If the infringing employer is a direct subcontractor, the contractor will also be severally liable, unless the subcontractor states in writing that it does not employ unauthorized employees. If the infringing employer is an indirect subcontractor, the contractor can only be severally liable after notification by the social inspection services and only up to the salary as of the date of such notification.
• Employees may exercise their rights before the court, as may representative organizations for employers or employees and the Centre for Equal Opportunities and Opposition to Racism (an independent government agency that fights discrimination and racism and that assists victims).

Draft Act on increased coordination of inspection of illegal employment and fraud. On June 22, 2012, the Belgian federal government agreed to a draft Act that approves a cooperation agreement between the inspection departments on federal (Belgium) and regional (Brussels, Flanders, and Wallonia) levels. According to a press release on June 23, 2012, the aim is to enhance the cooperation between the inspection departments at the different levels “primarily in order to inspect the employment of foreign employees.”

Potential Change: Transfer of Legislative Power From Federal to Regional Level

A potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions. At present the regions (Brussels, Flanders, and Wallonia) process work permits on the basis of federal legislation. The coalition agreement of the federal government and the general policy statement of the federal Minister of Employment both mention the transfer of legislative authority regarding economic migration to the regions.

No specific steps have been taken yet to initiate this process. It is not yet clear whether, when, and to what extent the transfer of legislative power will be implemented. This could lead to different rules for Brussels, Flanders, and Wallonia.

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9. New Publications and Items of Interest

Prevailing wage FAQs. The Department of Labor has posted new and revised FAQs for the prevailing wage program. Topics include occupation-specific issues, the documentation of an affiliated or related nonprofit entity, and the issuance of hourly wages. These FAQs are available on the FAQs page of the Office of Foreign Labor Certification website under the heading “Prevailing Wage” (PERM, H-2B, H-1B, H-1B1, and E-3).

Trainings on prevailing wage requirements for federal contracts. The Department of Labor’s Wage and Hour Division will host four free trainings on the rules concerning prevailing wage requirements for federal contractors, contracting officials, unions, workers, and other interested parties. The trainings will be in Los Angeles (July 24-26); Miami (July 31-August 2); Philadelphia (July 10-12); and Seattle (August 7-9). Space is limited. To attend, e-mail whdpwc@dol.gov and include the participant’s name, title, organization, and e-mail address, as well as the location of the training desired. A Department of Labor representative will advise whether space remains available. The announcement.

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 recently been named a Nautilus book award silver medal winner in the Conscious Media/Journalism/Investigative Reporting category, 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 in the Multicultural/Nonfiction Adult category 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, in the Non-Traditional Photojournalism Publishing category.

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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10. Member News

H. Ronald Klasko was quoted on the number of Asian immigrants in the United States, in the June 21, 2012, Philadelphia Inquirer.

Charles Kuck was quoted recently by Public Broadcasting Atlanta, CNN, Bizjournals.com, the Atlanta Journal-Constitution, KSRO, and Broken Border Patrol.

Cyrus Mehta has published several new blog entries. “Dreaming in Arizona: Can Prosecutorial Discretion Co-Exist With Show Me Your Papers?” “Deferred Action: The Next Generation”

Cyrus Mehta was a Discussion Leader, Third Party Placements panel, at the American Immigration Lawyers Association’s Annual Conference in Nashville, Tennessee, on June 15, 2012.

Cyrus Mehta was also quoted in the media recently, at ILW.com, Fronteras, Business Standard, and Economic Times.

Angelo Paparelli has published several new blog entries. “Immigration Quibbles and Bites: The Fortnight in Review” “Immigration Lawyers Arguing: ‘Can I Work from Home for a Foreign Employer?” “The President Has Spoken – Can DHS Make the Immigration DREAM Come True?”

Nick Rollason spoke on the global immigration aspects of the United Kingdom Bribery Act at the American Immigration Lawyers Association’s Global Forum in Nashville, Tennessee, on June 13, 2012.

Stephen Yale-Loehr was quoted recently on the Supreme Court’s ruling on Arizona’s immigration-related law, by Voice of America, WNYC, La Opinión, Contra Costa Times and other California papers. He was also interviewed on the BBC international news hour radio program, NPR’s All Things Considered, several radio stations, and one TV station.

Stephen Yale-Loehr and an individual included in the book Green Card Stories will speak on the Out of Bounds Radio Show on Thursday, July 5 at 7 pm EDT on WEOS-FM (90.3 & 89.7 Geneva region) and on Sunday, July 8 at 11:30 am EDT on WSKG-FM (89.3 Binghamton, 90.9 Ithaca, 91.7 Cooperstown/Oneonta, 91.1 Corning/Elmira, 88.7 Hornell/Alfred).

Four ABIL members and their partners are on the Human Resource Executive list of The Nation’s 20 Most Powerful Employment Attorneys – Immigration: H. Ronald Klasko, Angelo Paparelli, Julie Pearl, and Bernard Wolfsdorf.

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11. Government Agency Links

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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. USCIS Launches Online Immigration System – Individuals can establish a USCIS ELIS account and apply online to extend or change their nonimmigrant status for certain visa types.

2. USCIS Issues Precedent Decision on P-3 Performing Artist/Entertainer Nonimmigrant Visa Petition – The decision addresses the term “culturally unique” and its significance in adjudicating petitions for performing artists and entertainers.

3. USCIS EB-5 Stakeholders Meeting Provides Little New Information – An EB-5 stakeholder meeting on May 1 provided few new details on how the agency plans to improve processing times.

4. Senators Urge Mayorkas Not To ‘Undermine’ L Visa Program – The senators said they were concerned that the L-1B visa program, which allows companies to transfer employees with specialized knowledge from their foreign facilities to their U.S. offices, “is harming American workers.”

5. USCIS Centralizes Filing, Adjudication of Certain Waivers of Inadmissibility – Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a U.S. consular officer will be able to mail requests to waive certain grounds of inadmissibility directly to a USCIS lockbox facility.a

6. DHS Extends, Redesignates Somalia for TPS – Somali nationals with TPS who are seeking to re-register for TPS must file their application packages during the 60-day re-registration period that runs from May 1, 2012, through July 2, 2012.

7. Department of Labor Advises on H-2B Final Rule Injunction, Procedures for H-2B Labor Certifications – The Department of Labor published a Federal Register notice on May 16, 2012, advising on the injunction the U.S. District Court for the Northern District of Florida placed on implementation of the H-2B 2012 final rule.

8. ABIL Sends Comments on I-9 Proposed Revisions – ABIL formally objected to the failure of USCIS to submit for full regulatory review, with opportunity for public comment, the proposed three-page instructions to the I-9 and another set of 64 pages of instructions in the “Handbook for Employers.”

9. ABIL Global: Canada – As of March 1, 2012, certain individuals, previously ineligible for entry to Canada due to past criminality, may be eligible for a fee-exempt “on the spot” temporary resident permit for one visit to Canada.

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

11. Member News – Member News

12. Government Agency Links – Government Agency Links

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Details:

1. USCIS Launches Online Immigration System

On May 22, 2012, U.S. Citizenship and Immigration Services (USCIS) launched the first phase of its electronic immigration benefits system, USCIS ELIS.

Individuals can establish a USCIS ELIS account and apply online to extend or change their nonimmigrant status for certain visa types. Eligible individuals include foreign citizens who travel to the United States temporarily to study, conduct business, receive medical treatment, or visit on vacation. USCIS ELIS will also enable USCIS officers to review and adjudicate online filings from multiple agency locations.

Following this first release, USCIS anticipates making adjustments and improvements in response to user feedback. Future releases will add form types and functions to the system, gradually expanding to cover filing and adjudication for all USCIS immigration benefits.

USCIS said the benefits of using USCIS ELIS include filing applications and paying fees online, shorter processing times, and the ability to update user profiles, receive notices, and respond to requests electronically. The system also includes tools to combat fraud and identify national security concerns.

NOTICE

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2. USCIS Issues Precedent Decision on P-3 Performing Artist/Entertainer Nonimmigrant Visa Petition

U.S. Citizenship and Immigration Services’ (USCIS) Administrative Appeals Office (AAO) issued a binding precedent decision on May 15, 2012, addressing the term “culturally unique” and its significance in adjudicating petitions for performing artists and entertainers.

The Skirball Cultural Center filed a P-3 nonimmigrant petition with USCIS’ California Service Center (CSC) on behalf of a musical group from Argentina. The CSC denied the petition, holding that the cultural center failed to establish that the group’s performance was “culturally unique.” “[D]ue to the unusually complex and novel issue and the likelihood that the same issue could arise in future decisions,” the CSC asked the AAO to review its denial.

The AAO reversed the CSC and approved the petition after its review of the entire record, which included expert written testimony and corroborating evidence on behalf of the musical group. The AAO noted that the regulatory definition of “culturally unique” requires the agency to make a case-by-case factual determination. The decision clarified that a “culturally unique” style of art or entertainment is not limited to traditional art forms, but may include artistic expression that is deemed to be a hybrid or fusion of more than one culture or region.

The petitioner had sought classification of the beneficiaries as P-3 entertainers for a period of approximately six weeks. The beneficiaries were musicians in the group known as Orquesta Kef. The ensemble of seven musicians from Argentina had been performing together for between four and eight years, according to a letter dated September 2009, and performed music that blended klezmer (Jewish music of Eastern Europe) with Latin and South American influences. The group’s biography stated that the band had developed “its own and unique musical style” based on “the millenary force of tradition and the powerful emotion of the Jewish culture, mixed in with Latin American sounds.” The petitioner also provided a letter from an associate professor at the University of Southern California’s Annenberg School for Communication supporting the band’s claim to cultural uniqueness, among other submitted expert opinion letters and published materials.

The decision noted that Congress did not define the term “culturally unique” and the former Immigration and Naturalization Service (now USCIS) defined it in regulations as “a style of artistic expression, methodology, or medium which is unique to a particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.”

The CSC decision denying the petition claimed that a hybrid or fusion style of music “cannot be considered culturally unique to one particular country, nation, society, class, ethnicity, religion, tribe, or other group of persons.”

The AAO said that the CSC’s reasoning was not supported by the record, noting:

[T]he fact that the regulatory definition allows its application to an unspecified “group of persons” makes allowances for beneficiaries whose unique artistic expression crosses regional, ethnic, or other boundaries. While a style of artistic expression must be exclusive to an identifiable people or territory to qualify under the regulations, the idea of “culture” is not static and must allow for adaptation or transformation over time and across geographic boundaries. The term “group of persons” gives the regulatory definition a great deal of flexibility and allows for the emergence of distinct subcultures. Furthermore, the nature of the regulatory definition of “culturally unique” requires USCIS to make a case-by-case factual determination based on the agency’s expertise and discretion. Of course, the petitioner bears the burden of establishing by a preponderance of the evidence that the beneficiaries’ artistic expression, while drawing from diverse influences, is unique to an identifiable group of persons with a distinct culture. To determine whether the beneficiaries’ artistic expression is unique, the director must examine each piece of evidence for relevance, probative value, and credibility, both individually and within the context of the entire record.

The AAO pointed out that the CSC’s decision failed to note that the beneficiary group was a klezmer band and “seemed to struggle to identify the nature of the group’s musical performance, focusing instead on the group’s musical influences. “Here, the evidence establishes that the beneficiaries’ music is, first and foremost, Jewish klezmer music that has been uniquely fused with traditional Argentine musical styles.” The AAO said it found particularly persuasive an expert opinion explaining that klezmer music, while often associated with ethnically Jewish people, is an artistic form that has migrated and is continually mixed with and influenced by other cultures.” The AAO also noted the fact that the beneficiaries were South Americans born to Eastern European immigrants and therefore were influenced by both cultures to create something new and unique to their experience. All the opinion letters submitted also recognized the existence of a distinct Jewish Argentine culture and identity that was expressed in the beneficiary group’s music. Furthermore, the AAO noted, the published articles submitted recognized a musical movement in Argentina that fuses Argentine styles with influences from Jewish music and other Eastern European styles, and the articles and opinion letters placed the beneficiary group at the forefront of this trend.

Accordingly, the AAO found that the petitioner had established by a preponderance of the evidence that the modern South American klezmer music performed by the beneficiary group was representative of the Jewish culture of the beneficiaries’ home country of Argentina and that the group’s musical performance therefore fell within the regulatory definition of “culturally unique.” The AAO added that the petitioner had submitted an itinerary showing that the beneficiary group would be performing at Jewish cultural centers and temples during its U.S. tour, which provided further evidence that the performances would be culturally unique events.

This is the AAO’s third precedent decision issued since late 2010. As with all precedent decisions, it was selected and designated as precedent by the Secretary of the Department of Homeland Security with the Attorney General’s concurrence.

DECISION

USCIS ANNOUNCEMENT 1

USCIS ANNOUNCEMENT 2

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3. USCIS EB-5 Stakeholders Meeting Provides Little New Information

U.S. Citizenship and Immigration Services (USCIS) held a quarterly EB-5 stakeholders meeting on May 1, 2012. Over 250 people attended in person, and over 300 listened by phone. Despite the interest in the meeting, USCIS did not provide much information. For example:

• USCIS did not allow questions about and did not comment on the “tenant-occupancy” methodology issue, stating that the issue is under review. See the prior article. USCIS confirmed that applicants who were issued a “tenant-occupancy” RFE will be contacted with a notice that their deadline for response will be extended. However, there were no promises of forthcoming guidance related to the RFE.
• USCIS did not answer stakeholder questions that had been submitted before the meeting.
• USCIS expressed no specific plan or goals to improve processing times, which have slowed in recent months.
• USCIS expressed no specific plan or goals to improve communication through the public engagement mailbox or through the I-924 applicant e-mail lines.
• USCIS expressed no specific plan or goals to communicate expectations and standards in a more open manner.
• USCIS suggested that a new draft of its “foundational” EB-5 policy memo would be emerging “in a few weeks,” and that the agency is not currently deferring to the draft memo or implementing the “material change” guidance included in the current draft.
• USCIS refused to say how it would handle pending EB-5 petitions if Congress fails to extend the EB-5 pilot program after September 30, 2012. USCIS said it would address this issue at its July EB-5 stakeholders meeting.

According to the latest EB-5 program statistics based on preliminary data for the second quarter of fiscal year (FY) 2012, USCIS received 2,771 I-526 (Immigrant Petition by Alien Entrepreneur) petitions and had approved 2,101 and denied 384 so far. This was an 85 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 second quarter of FY 2012, USCIS had received 375 I-829 (Petition by Entrepreneur to Remove Conditions) petitions and had approved 522 and denied 24 so far. This was a 96 percent approval rating, matching a 96 percent approval rating for all of FY 2011 and exceeding an 83 percent approval rating for FY 2010.

USCIS also noted that as of March 31, 2012, processing times were reaching 6 months for an I-924 initial application (target is 4 months), and were reaching 8 months for an I-924 amendment application (target is 4 months). USCIS recently approved four new regional centers: the California Regional Center, LLC; Las Vegas EB-5 Immigration, LLC; New York City Real Estate Regional Center, LLC; and Lone Star Regional Center, LLC. The full list of RCs by state is available HERE.

The next USCIS stakeholder engagement meetings are scheduled for July 26, 2012 (regional center discussion) and October 23, 2012 (general EB-5 discussion).

Additional details on the engagement meetings and the latest statistics.

Recording of the stakeholder engagement.

Latest statistics. are available HERE.

Latest EB-5 regional center statistics and information page.

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4. Senators Urge Mayorkas Not To ‘Undermine’ L Visa Program

Sens. Charles Grassley (R-Iowa) and Richard Durbin (D-Ill.) recently urged Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services, not to propose changes that “would undermine the L visa program” when USCIS issues new guidance on the L-1B “specialized knowledge” standard, expected in the near future. The senators shared their thoughts in a letter sent to Director Mayorkas on March 7, 2012.

The senators said they were concerned that the L-1B visa program, which allows companies to transfer employees with specialized knowledge from their foreign facilities to their U.S. offices, “is harming American workers” because some employers, especially foreign outsourcing companies, “use L-1B visas to evade restrictions on the H-1B visa program.” For example, the senators noted, the L-1 program does not have an annual cap and does not include the labor protections of the H-1B program.

In January 2011, the Department of State issued new guidance to consular officers on adjudicating visas under the specialized knowledge category, outlining criteria including (1) the proprietary nature of the knowledge possessed by the visa applicant, (2) whether the visa applicant is “key” or normal personnel, and (3) whether the applicant possesses more skills or knowledge than an “ordinary” employee. The senators also noted that in July 2008, USCIS’s Administrative Appeals Office (AAO) considered the definition of “specialized knowledge” and concluded that such employees are “an elevated class of workers within a company and not an ordinary or average employee.” The senators advocated adoption of the standards and reasoning articulated in the January 2011 Department of State guidance and the July 2008 AAO decision. “We are concerned that any weakening of the standard would create additional incentives for some employers to use the L-1B visa program in order to circumvent even the minimal wage and other protections for American workers in the H-1B visa program.”

A USCIS spokesperson said, “USCIS is currently reviewing its L-1B policy guidance, which is comprised of a series of memoranda dating back to 1994, to assess whether that guidance assists adjudicators in applying the law in new business settings that companies face today.”

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5. USCIS Centralizes Filing, Adjudication of Certain Waivers of Inadmissibility

Beginning June 4, 2012, individuals abroad who have applied for certain visas and have been found ineligible by a U.S. consular officer will be able to mail requests to waive certain grounds of inadmissibility directly to a U.S. Citizenship and Immigration Services (USCIS) lockbox facility. This change affects where individuals abroad, who have been found inadmissible for an immigrant visa or a nonimmigrant K or V visa, must send their waiver applications.

Those filing waiver applications with a USCIS lockbox will now be able to track the status of their cases online. The change affects filings for:

• Form I-601, Application for Waiver of Grounds of Inadmissibility
• Form I-212, Application for Permission to Reapply for Admission into the United States After Deportation or Removal
• Form I-290B, Notice of Appeal or Motion (if filed after denial of a Form I-601 or Form I-212).

Applicants who mail their waiver request forms should use the address provided in the revised form instructions on the USCIS website. Applicants who wish to receive an e-mail or text message when USCIS has received their waiver request may attach Form G-1145, E-Notification of Application/Petition Acceptance, to their application.

During a limited six-month transition period, immigrant visa waiver applicants in Ciudad Juarez, Mexico, may either mail their waiver applications to the USCIS lockbox in the United States or file in person at the USCIS office in Ciudad Juarez. USCIS said it is aware of the pending caseload for applicants in Ciudad Juarez and “is taking proactive steps to work through these cases.” USCIS plans to increase significantly the number of officers assigned to adjudicate the residual cases filed before June 4 and those filed during the interim six-month transition period. USCIS has already begun testing this process and has transferred applications from Ciudad Juarez to other USCIS offices in the United States.

This change is separate and distinct from the provisional waiver proposal published in the Federal Register on March 30, 2012.

USCIS Announcement

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6. DHS Extends, Redesignates Somalia for TPS

The Department of Homeland Security has redesignated Somalia for temporary protected status (TPS) and extended the existing TPS designation from September 18, 2012, through March 17, 2014. Somali nationals with TPS who are seeking to re-register for TPS must file their application packages during the 60-day re-registration period that runs from May 1, 2012, through July 2, 2012. Somalis (or persons without nationality who last habitually resided in Somalia) in the United States who do not currently have TPS may apply under the re-designation during the six-month period that runs from May 1, 2012 through October 29, 2012. U.S. Citizenship and Immigration Services (USCIS) encourages eligible individuals to register as soon as possible.

A Somali national may be eligible under the redesignation if she or he has continuously resided in the United States since May 1, 2012, and has been continuously physically present in the United States since Sept. 18, 2012.

DHS anticipates that there are approximately 250 individuals who will be eligible to re-register for TPS under the existing designation of Somalia and estimates that fewer than 1,000 additional individuals will be eligible for TPS under the redesignation.

DHS said the extension of the current Somalia TPS designation is due to the continued disruption of living conditions in the country based upon extraordinary and temporary conditions that prompted the Attorney General’s redesignation of Somalia for TPS on September 4, 2001. The latest redesignation is based on “ongoing armed conflict and the worsening of the extraordinary and temporary conditions, including the effects of the recent severe drought in Somalia.”

Announcement

Federal Register Notice

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7. Department of Labor Advises on H-2B Final Rule Injunction, Procedures for H-2B Labor Certifications

The Department of Labor published a Federal Register notice on May 16, 2012, advising on the injunction the U.S. District Court for the Northern District of Florida placed on implementation of the H-2B 2012 final rule, published in February, and outlining procedures to be followed in seeking labor certification to file H-2B petitions. The notice states that employers must file H-2B labor certification applications under the 2008 H-2B rule, using those procedures and forms associated with the 2008 H-2B rule for which the Department has received an emergency extension.

The notice states that “this preliminary injunction necessarily calls into doubt the underlying authority of the Department to fulfill its responsibilities under the Immigration and Nationality Act and [Department of Homeland Security] regulations to issue the labor certifications that are a necessary predicate for the admission of H-2B workers.” The Office of Foreign Labor Certification plans to post additional filing guidance on its website.

Notice

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8. ABIL Sends Comments on I-9 Proposed Revisions

The Alliance of Business Immigration Lawyers (ABIL) sent comments on the revised Form I-9 (Employment Eligibility Verification) on May 23, 2012, to U.S. Citizenship and Immigration Services (USCIS). ABIL formally objected to the failure of USCIS to submit for full regulatory review, with opportunity for public comment, the proposed three-page instructions to the I-9 and another set of 64 pages of instructions in the “Handbook for Employers,” accessible at http://www.uscis.gov/files/form/m-274.pdf. These instructions are to be treated as incorporated amendments of USCIS regulations, and ABIL noted that the I-9 instructions impose substantive legal requirements.

The agency “has not complied with several federal statutes and presidential directives including the Administrative Procedure Act [APA], the [Paperwork Reduction Act (PRA)], the Regulatory Flexibility Act, Executive Orders 12866 and 13563 and OMB Circular A-4,” ABIL said. Moreover, the PRA public burden and cost estimate of $414,375,200 is “woefully inadequate.” The time estimate for completion of the form is three minutes, which, according to the three-page I-9 instructions, includes reading the instructions. This could not conceivably include a reading of the M-274’s 64 pages of instructions, ABIL noted. Moreover, given the number of respondents (projected by USCIS to be 78 million), the cost burden estimate “must inevitably be many multiples of $414,375,200.” For the foregoing reasons, ABIL urged the Office of Management and Budget (OMB) to remand the information collection review to USCIS as unapproved and to direct the agency to comply in full with the applicable laws and regulations.

ABIL included detailed comments on the revised draft I-9. The comments will be posted shortly on the ABIL website.

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9. ABIL Global: Canada

As of March 1, 2012, certain individuals previously ineligible for entry to Canada due to past criminality may be eligible for a fee-exempt “on the spot” temporary resident permit for one visit to Canada.

To qualify for the exemption, the port of entry applicant must:

• have served no jail time, and
• have committed no other acts that would prevent him or her from entering Canada.

Applicants may be eligible for the fee waiver if they:

• have been convicted of an eligible offense (or its equivalent in foreign law);
• have served no jail time;
• have committed no other acts that would prevent them from entering Canada; and
• are not inadmissible for any other reason.

Eligible convictions include those equivalent to criminal offenses under the Immigration and Refugee Protection Act (IRPA), Section 36(2).

The equivalent convictions vary from country to country. Among others, they include:

• driving under the influence of alcohol;
• public mischief; or
• shoplifting.

All serious criminal offenses, defined under Section 36(1) of IRPA, are not eligible. Among others, they include:

• robbery;
• fraud over C$5000; or
• assault causing bodily harm.

Applicants may become admissible again if they:

• apply for a temporary resident permit and are approved;
• demonstrate through appropriate documentation that they meet the legal requirements to be deemed rehabilitated;
• apply for rehabilitation and are approved; or
• obtain a pardon.

Legal representation for these various applications and processes is strongly recommended because refusal rates are high.

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10. New Publications and Items of Interest

Resources for immigrating to Canada. The Globe and Mail has published “Essential Resources for Immigrating to Canada,” a list of links with descriptions of groups and organizations dealing with immigration in Canada. Included are Citizenship and Immigration Canada, the Maytree foundation, Metropolis Canada, among others; and links to resources in the provinces.

Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, to be 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 issues.

 

The book will be discounted 20% for pre-orders through May 31. ORDER HERE. The discount code is ABIL20 (enter this code at checkout). 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.

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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11. Member News

The following Alliance of Business Immigration Lawyers members will be speaking or leading discussions at the upcoming American Immigration Lawyers Association conference to be held June 13-16, 2012, in Nashville, Tennessee:

• Maria Celebi and Bernard Wolfsdorf will speak on “How to Effectively Communicate with Consular Posts”
• Francis Chin will speak on ” ‘Who Pays the Piper?’: Immigration Expenses and Corporate Immigration Policies”
• Kehrela Hodkinson will be discussion leader for a panel on “How to Build a Practice Full of Great Clients”
• H. Ronald Klasko will speak on “Creating and Representing Regional Centers”
• Charles Kuck will speak on “Protecting Our Clients: How to Combat Anti-Immigrant Legislation”
• Sharon Mehlman will speak on “Attracting the Best Employees and Letting the Worst Go”
• Cyrus Mehta will speak on “Third Party Placement”
• Angelo Paparelli will speak on “Please Make the Music Stop!: Anticipating, Avoiding, and Attacking NIV RFEs”

Eugene Chow was recently interviewed on The Wall Street Journal‘s digital edition. He discussed Americans living overseas who give up U.S. citizenship to avoid paying taxes, and the effect of the exit tax.

Robert Loughran moderated, and Sharon Mehlman spoke, on “Tips on Electronic Verification Systems, Including Form I-9 Software and E-Verify Best Practices,” on May 24, 2012, in Part 2 of the ILW E-Verify and Form I-9 Compliance seminar. For more information, see HERE.

Mr. Loughran was named one of Texas’ Best Lawyers in Immigration Law for 2012, by Best Lawyers – Texas edition. FosterQuan was recognized as receiving more selections than any other immigration law firm.

Cyrus Mehta has written several new blog entries. “Halt America’s Decline By Welcoming Skilled and Entrepreneurial Immigrants.” “Assault on Battered Immigrants: HR 4970 Undoes VAWA Protections and Risks Lives.”

Angelo Paparelli has published several new blog entries. “With Hope Springing Eternally, ACUS Is Working on Immigration Again“. “Rendering Unto the Immigration Caesars“.

Bernard Wolfsdorf has been named Corporate Immigration Lawyer of the Year in the 2012 Who’s Who Legal Awards.

Stephen Yale-Loehr was interviewed on WSKG, a National Public Radio station in New York on the episode, “Immigration in the Finger Lakes.”

Mr. Yale-Loehr was quoted in USA Today on May 26, 2012, in “Illegal Immigrants Find Paths to College, Careers.” He noted that the law does not require those who hire independent contractors to ask for proof of immigration status. A client who pays for such services is not necessarily breaking the law if the contractor isn’t authorized to work, he said, noting that self-employed undocumented contractors are violating immigration law but may avoid additional grounds for removal if they don’t present counterfeit documents.

Mr. Yale-Loehr co-authored an article about EB-5 I-829 requests for evidence that was published in the June 1, 2012, issue of Bender’s Immigration Bulletin.

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12. 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. FY 2013 H-1B Petitions Coming In Fast – Over 25,000 cap-subject H-1B petitions have been filed as of April 20, 2012.

2. India, China EB-2 Category Retrogresses Dramatically – As predicted for May, the India and China EB-2 priority dates have retrogressed dramatically, from May 1, 2010, to August 15, 2007.

3. DOL Changes Effective Date of 2012 H-2B Final Rule; Preliminary Injunction Granted – On April 26, 2012, a federal judge granted a preliminary injunction, applicable nationwide, against implementing the new H-2B program rule for 60 days.

4. DOL Revises H-2A and H-2B Forms – All H-2A and H-2B applications must be submitted using the revised form; Appendix A.2 remains unaffected.

5. DOS Beefs Up Consular Services in Brazil, Plans Two New Consulates – To address immediate growth in demand, the Department of State is sending dozens of consular officers to Brazilian posts to adjudicate visa applications.

6. ABIL Global: Mexico – A new Mexican immigration law will enter into force this year, after 40 years under the current law.

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

8. Member News – Member News

9. Government Agency Links – Government Agency Links

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Details:

1. FY 2013 H-1B Petitions Coming In Fast

According to U.S. Citizenship and Immigration Services, over 25,000 cap-subject H-1B petitions have been filed as of April 20, 2012. If this keeps up, the H-1B cap could be reached quickly.

The Alliance of Business Immigration Lawyers (ABIL) recommends that employers file early and allow time for the labor condition application process. Contact your ABIL attorney now for guidance and help with the process.

Latest statistics.

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2. India, China EB-2 Category Retrogresses Dramatically

As predicted for May, the India and China EB-2 priority dates have retrogressed dramatically, from May 1, 2010, to August 15, 2007. Priority dates for those countries are not expected to advance again until October 1, 2012, at the earliest, when the new federal fiscal year begins.

If an I-485 Application for Adjustment of Status was filed while the person’s priority date was current, it will remain pending until the priority date is current again. Because the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, while the priority date is retrogressed.

The May bulletin from the Department of State’s Visa Office. Contact your ABIL attorney for assistance.

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3. DOL Changes Effective Date of 2012 H-2B Final Rule; Preliminary Injunction Granted

On February 21, 2012, the Department of Labor published a final rule amending the H-2B program regulations and providing for an effective date of April 23, 2012, which is 60 days after the date of publication of the final rule. The Department clarified that the final rule would not be operative until April 27, 2012, which is 60 days after February 27, 2012, the date on which the rule was reported to Congress, and the earliest date on which the rule can become operative by law. An injunction has temporarily blocked implementation, however.

The Department said that applications postmarked on or after April 27, 2012, would be adjudicated in accordance with the requirements described in the final rule. Any application filed under the current regulation that is postmarked on or after April 27, 2012, will be returned, and the employer (and its agent or attorney) informed of the need to file a new application in accordance with the provisions of the new H-2B final rule.

The Department also noted that employers who file H-2B applications with a start date of need before October 1, 2013, do not need to obtain the pre-approved H-2B registration under 20 CFR 655.15, and the Department will continue to adjudicate temporary need by reviewing the employer’s statement of temporary need in Section B of the ETA Form 9142. Employers with H-2B applications postmarked on or after April 27, 2012, with a start date of need on or after October 1, 2013, must comply with all the requirements contained in the registration process unless the Office of Foreign Labor Certification publishes additional guidance in the Federal Register.

Meanwhile, on April 26, 2012, Judge M. Casey Rogers of the Northern District of Florida granted a preliminary injunction, applicable nationwide, against implementing the new program rule for 60 days. The U.S. Chamber of Commerce and others had filed suit on behalf of landscaping and forestry businesses in the U.S. District Court in Pensacola, Florida, arguing that the Department of Labor overstepped its authority by requiring companies to provide immigrant workers hired for low-skilled jobs wage guarantees and travel reimbursements. The Chamber said that such policies will drive up costs for landscape companies and should be issued by the Department of Homeland Security rather than Labor. Congress has blocked implementation of the related wage rule until September 30, 2012.

The Louisiana Department of Agriculture & Forestry released a statement from Commissioner Mike Strain noting that “[t]hese jobs are seasonal. Americans workers aren’t willing to take a seasonal job peeling crawfish or shrimp or picking crab meat for four or five months. Consequently, employers cannot fill vacancies for temporary jobs in their peeling plants, sugar mills, forests and packing factories so they have to advertise for guest workers who are willing to do those jobs.” Mr. Strain also said, “This injunction is a step in the right direction and I applaud the decision of Judge Rogers, who clearly recognized the economic harm to small business caused by the Department of Labor’s H-2B rules. However, I know employers need more than a 60-day reprieve from the detrimental effects of these H-2B rules and the H-2B changes should be permanently withdrawn or legislatively removed by Congress.” He said that many agricultural industries could be adversely affected otherwise.

A group of business advocacy associations has filed a similar suit in federal court in Philadelphia against the Department’s H-2B wage rule. The issues are whether the Department must consider employer hardship and economic concerns during regulatory formulation, and whether the Department has jurisdiction to issue H-2B regulations.

U.S. Citizenship and Immigration Services has postponed a stakeholder engagement scheduled for May 2, 2012, on “Temporary Need in the H-2B Context.” A new date has not yet been set.

Employers with questions about the H-2B process may e-mail them to H-2B.Regulation@dol.gov. The Department said it will provide responses in the form of Frequently Asked Questions (FAQs) on its website. The new guidance, issued before the preliminary injunction, is available here.

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4. DOL Revises H-2A and H-2B Forms

The Department of Labor has revised the ETA Form 9142, Appendix B.1 and associated instructions, in connection with the H-2B 2012 final rule.

Employers filing H-2B applications under the 2012 final rule are supposed to use the revised ETA Form 9142 and Appendix B.1 starting with applications postmarked on or after April 27, 2012, the Department said in an announcement. Given the federal court injunction mentioned in the prior article, however, it is unclear whether the new forms should be used after April 27.

The current ETA 9142 expired at the end of April. Therefore, all H-2A applications postmarked after April 30, 2012, must be submitted using the revised form. Appendix A.2 (H-2A only) remains unaffected and employers may continue to use it.

New Forms

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5. DOS Beefs Up Consular Services in Brazil, Plans Two New Consulates

The Department of State plans to open two new consulates in Belo Horizante and Porto Alegre, Brazil, which the White House said are important economic and cultural centers for the states of Minas Gerais and Rio Grande do Sul.

In remarks to the U.S.-Brazil Partnership for the 21st Century, Secretary of State Hillary Clinton said the openings are intended to “make it easier to get those visas, easier to travel, knock down some of the barriers that have been put up, and continue to promote people-to-people contact.” It was not clear from the official statements when the consulates would open, but reports suggested they may not begin operations until 2014.

To address immediate growth in demand, the Department of State is sending dozens of consular officers to Brazilian posts to adjudicate visa applications. Between August and December 2011, the Department sent 82 temporary duty officers to Brazil, who issued more than 135,000 visas to Brazilian travelers. The Department of State is doubling the number of diplomats performing consular work in Brazil over the next year.

The Department is also implementing a pilot program in which consular officers may waive in-person interviews for certain qualified individuals, such as those renewing their visas within 48 months of the expiration of their previous visas, and Brazilians below the age of 16 and those age 66 and older. Because security is paramount, consular officers may interview any visa applicant in any category. Nonetheless, the Department said that this program “will benefit thousands of Brazilians who want to visit the United States.”

According to a White House statement released on April 9, 2012, Brazil now ranks as the fourth largest source of overseas visitors, with 1.5 million visits to the United States in 2011, representing a 26 percent increase from 2010. Visa issuances to Brazilians tripled between 2006 and 2011, and are on pace for significant gains in 2012, the White House noted. As of February, visa processing was up 57 percent in 2012 from the same time frame in 2011. The Department of Commerce forecasted that 2.8 million Brazilians will travel to the United States in 2016, an increase of 87 percent from 2011. Visa interview wait times have dropped dramatically in Brazil, and now average just two weeks or less in Brasilia, Recife, and Rio de Janeiro, and 35 days or fewer in Sao Paulo.

Secretary Clinton’s remarks

The White House Statement

Related Fact Sheet

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6. ABIL Global: Mexico

On May 24, 2011, President Felipe Calderon of Mexico signed a new Immigration Law, which abolished and superseded the General Population Law that had been in existence for 40 years. The new law involves significant changes to the current immigration regime, although these will not become evident until implementing regulations are published.

Publication of the regulations has been considerably delayed mainly due to the pressure of several nongovernmental organizations advocating for immigrants’ human rights, along with bureaucratic delays in government offices. Regulations are expected to be published later this year.

The regulations are expected to pave the way to protect the human rights of immigrants; develop immigration processes focused mainly on demographic and immigration control issues; promote national security and economic development; and simplify immigration processes to attract foreign investors.

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7. New Publications and Items of Interest

H-1B, H-1B1, E-3 resources. The Department of Labor’s Office of Foreign Labor Certification has posted a contact list for the H-1B, H-1B1, and E-3 programs to assist employers with their applications. Helpful Resources. New FAQ on these programs.

Entrepreneurs in Residence executive summary. U.S. Citizenship and Immigration Services (USCIS) has released an executive summary of its information summit held in February 2012 on the “Entrepreneurs in Residence” initiative. The summary discusses the panel discussion and breakout sessions held, and emerging themes, including demonstrating the legitimacy of startups through investments, understanding the organizational structure of a startup, defining specialty occupations, training and culture, and requests for evidence. Stakeholders interested in sharing additional feedback and concrete suggestions with the USCIS Tactical Team can e-mail public.engagement@dhs.gov with the subject line “Entrepreneurs in Residence.” Executive Summary.

EB-5 stakeholder engagement meeting. U.S. Citizenship and Immigration Services will hold a stakeholder engagement meeting on the EB-5 immigrant investor program on July 26, 2012 (teleconference only; focus: regional centers) and October 23, 2012 (in-person and teleconference). For more information or to register, see here.

Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, to be 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 issues.

The book will be discounted 20% for pre-orders through May 31. ORDER HERE. The discount code is ABIL20 (enter this code at checkout). 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.

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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8. Member News

Laura Danielson and Cyrus Mehta were quoted in an article published on April 17, 2012, by Knowledge@Wharton Today, “For High-Skilled Workers, the Visa Race is On.” Ms. Danielson noted that U.S. employers “are more confident about hiring again,” and said that studies have repeatedly confirmed that an increase in high-skilled professionals leads to net job growth for the U.S. economy. H-1B demand is surging among her clientele in the medical devices, automotive, biotechnology, and IT industries. She noted that employers looking for skills in the STEM (science, technology, engineering, and mathematics) often find them among Chinese professionals. Mr. Mehta said that if the current increased pace of H-1B applications continues, the annual cap could be reached within the next few months. He attributed the rising demand primarily to increased startup activity in the New York City area, especially in mobile applications and IT security. He also noted that some of the current demand could represent spillover from recent denials of L-1B specialized knowledge visas by the consulate in Chennai, India.

Mr. Mehta has published a new blog entry. “From Madison to Morton: Will Prosecutorial Discretion Trump State Action in Arizona v. USA?”

Mr. Mehta was a guest speaker on “H-1B and L-1B Denials and Preserving Permanent Residence” at the American Immigration Lawyers Association’s Philadelphia Chapter Dinner Meeting held on April 19, 2012.

Angelo Paparelli has published several new blog entries. “When Possible, Treat Immigrants As Criminal Defendants, Not Criminals” and “Immigration-Agency Lawbreaking Revealed: USCIS’s EB-5 ‘Tenant-Occupancy’ Scandal”

The Wolfsdorf Immigration Law Group will present several free webinars. Upcoming topics include Investors/Traders (E Visas) and Company Transferee (L Visas) and Green Cards (E-13), to be held Thursday, May 10, 2012; Religious Worker Visas – Ordained and Non-Ordained, to be held Thursday, May 17, 2012; Artist and Entertainer Work Visas (O and P) and Green Cards (E-11), to be held June 7, 2012; Work Visas and Green Cards for Athletes (O/P and E-11), to be held Thursday, June 21, 2012; and Visa Options for International Scholars, Faculty and Staff, to be held Thursday, July 12, 2012. For more information or to register, see HERE.

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9. Government Agency Links

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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. FY 2013 H-1B Filing Season Begins – Beginning on April 2, 2012, employers may file cap-subject H-1B petitions for FY 2013, for employment starting on October 1, 2012, or later.

2. Department of State Amends Fees for Consular Services – The Department issued an interim final rule increasing fees for consular services for nonimmigrant visa applications, border crossing card applications, and immigrant visa applications.

3. Visa Interview Waiver Pilot Program Expanded to New Delhi, India – The pilot program permits consular officers to waive interviews for qualified nonimmigrant applicants worldwide who are renewing their B-1/B-2 visas within 48 months of the expiration of their previously held visa, and within the same classification as the previous visa.

4. India, China EB-2 Category Expected To Retrogress Soon – The Visa Office is predicting a retrogression of priority dates in the India and China EB-2 category to a 2007 priority date, effective in the May or June Visa Bulletin.

5. USCIS Seeks Public Comment on Revisions to I-9 Employment Eligibility Verification Form – The comment period ends on May 29, 2012.

6. Federal Judge Chides USCIS for Denial of ‘Specialty Occupation’ H-1B Petition to Market Research Analyst With Related Bachelor’s Degree – The judge said USCIS’s errors constituted “a litany of incompetence that presents [a] fundamental misreading of the record, relevant sources, and the point of the entire petition.”

7. Brazilian Worker Loses Claim of National Origin Discrimination, Retaliation – Among other things, the court found that the plaintiff did not present sufficient evidence to find that SuperValu’s legitimate nondiscriminatory reason for her termination – her performance – was a pretext for retaliation in violation of the law.

8. Business Organizations Send Letter on L-1 Issues to Obama Administration – A significant concern, the letter notes, is that an “inconsistent and improperly narrowed” definition of specialized knowledge is being used to determine which employees qualify for L-1B status.

9. CBP Expands Global Entry to Additional Airports – By September 22, 2012, Global Entry will be implemented at St. Paul International Airport, Charlotte Douglas International Airport, Phoenix Sky Harbor International Airport, and Denver International Airport, in addition to the 20 other airports listed.

10. DOL Issues Guidance on Transition Period for Changes to H-2B Temporary Nonagricultural Labor Certification Process – DOL issued the guidance following publication of its final rule on February 21, 2012, amending and creating H-2B regulations.

11. Syria Designated for Temporary Protected Status, DHS Announces – The TPS designation and the registration period both run from March 29, 2012, through September 30, 2013.

12. USCIS Grants Temporary Extension of Accommodation for H-2A Sheepherders – USCIS will require H-2A sheepherders who have reached their maximum three-year period of stay to depart the United States by August 16, 2012, and remain outside the country for at least three months before petitioning for H-2A classification again.

13. ABIL Global: South Africa – Significant amendments to the Refugees Act and the Immigration Act, 2002, are expected; among other things, applying to change a visitor permit to a work or medical permit will be prohibited. Also, those wishing to work in South Africa for longer than three months must obtain an appropriate permit.

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

15. Member News – Member News

16. Government Agency Links – Government Agency Links

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Details:

1. FY 2013 H-1B Filing Season Begins

Beginning on Monday, April 2, 2012, employers may file cap-subject H-1B petitions for fiscal year (FY) 2013, for employment starting on October 1, 2012, or later.

On November 22, 2011, U.S. Citizenship and Immigration Services (USCIS) received a sufficient number of petitions to reach the statutory cap for FY 2012. USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption as of October 19, 2011. With the improving economy, H-1B numbers could run out faster this year. The Alliance of Business Immigration Lawyers (ABIL) recommends that employers file early and allow time for the labor condition application process. Contact your ABIL attorney now for guidance and help with the process.

USCIS REMINDER

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2. Department of State Amends Fees for Consular Services

The Department of State has issued an interim final rule amending the schedule of fees for consular services for nonimmigrant visa applications, border crossing card applications, and immigrant visa applications.

The rule increases from $140 to $160 the fee for processing most non-petition-based nonimmigrant visas (machine-readable visas, or MRVs) and border crossing cards (BCCs) for Mexican citizens 15 years of age and above. The rule also amends application processing fees for certain categories of petition-based nonimmigrant visas and treaty trader and investor visas (all of which are also MRVs), and amends tiered application processing fees for immigrant visas. Finally, the rule increases from $14 to $15 the BCC fee charged to Mexican citizen minors who apply in Mexico, and whose parent or guardian already has a BCC or is applying for one, based on a congressionally mandated surcharge.

The interim final rule is effective April 13, 2012. Written comments must be received on or before May 29, 2012. The rule, which includes instructions on submitting comments, is available HERE.

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3. Visa Interview Waiver Pilot Program Expanded to New Delhi, India

The U.S. Embassy in New Delhi, India, announced that the Visa Interview Waiver Pilot Program has been expanded to that post, effective immediately. Under the program, certain qualified foreign visitors who were interviewed and screened in conjunction with a previous visa application may be eligible to renew their visas without undergoing another interview.

The embassy explained that the pilot program permits consular officers to waive interviews for qualified nonimmigrant applicants worldwide who are renewing their B-1/B-2 visas within 48 months of the expiration of their previously held visa, and within the same classification as the previous visa. The pilot does not entitle any applicant to a waiver of personal appearance. Consular officers retain the authority to interview any applicant whom they determine requires a personal appearance.

ANNOUNCEMENT

For additional details on qualifying for an interview waiver, see HERE.

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4. India, China EB-2 Category Expected To Retrogress Soon

The State Department’s Visa Bulletin for April did not continue the dramatic forward movement of India and China EB-2 priority dates that has been observed for the past several months. The Alliance of Business Immigration Lawyers has also learned that the Visa Office is predicting a retrogression of priority dates in the India and China EB-2 category to a 2007 priority date, effective in the May or June Visa Bulletin.

For the month of April, the India and China EB-2 category remains steady at May 1, 2010. For May, the Visa Office recently announced that the priority date will retrogress, or be set earlier, possibly as early as August 2007. Priority dates are not expected to advance again until October 1, 2012, at the earliest, when the new fiscal year begins.

If an I-485 Application for Adjustment of Status is filed while the person’s priority date is current, it will remain pending until the priority date is current again. Because the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, while the priority date is retrogressed.

ABIL recommends that anyone with a priority date before March 2010 who is eligible to apply for adjustment of status do so immediately, because the opportunity to file such applications will likely end by May 1, 2012, and will not return until at least October 1, 2012 (and possibly much later). Contact your ABIL attorney for assistance.

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5. USCIS Seeks Public Comment on Revisions to I-9 Employment Eligibility Verification Form

U.S. Citizenship and Immigration Services (USCIS) invites public comment until May 29, 2012, on a revised employment eligibility verification form (I-9). Employers must complete the I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The comment period ends on May 29, 2012.

Key revisions to the form include:

• Expanded instructions and a revised layout.
• New, optional data fields to collect the employee’s e-mail address and telephone number.
• New data fields to collect the foreign passport number and country of issuance. Only those authorized to work in the U.S. who have also recorded their I-94 admission number on the I-9 will need to provide the foreign passport number and country of issuance.

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6. Federal Judge Chides USCIS for Denial of ‘Specialty Occupation’ H-1B Petition to Market Research Analyst With Related Bachelor’s Degree

In Residential Finance Corporation v. USCIS, decided on March 12, 2012, Judge Gregory L. Frost of the U.S. District Court for the Southern District of Ohio chided U.S. Citizenship and Immigration Services (USCIS) for its faulty analysis of why it denied an H-1B petition to a market research analyst with a bachelor’s degree in that field.

The issue before the court was whether USCIS incorrectly concluded that a “specialty occupation” was not involved. The court noted that a specialty occupation is one that requires attainment of a bachelor’s or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States. A related definition provides that a specialty occupation requires theoretical and practical application of highly specialized knowledge.

Among other things, USCIS argued that although the Department of Labor’s Occupational Outlook Handbook (OOH) recognizes a baccalaureate degree as the minimum educational requirement for many market and survey research jobs, the OOH does not indicate that such a degree need be in a specific specialty directly related to market research.

In this case, the beneficiary had obtained a bachelor of science degree in marketing and finance. The record indicated that a minimum requirement for entry into the position of market research analyst is the specialized course of study in which the beneficiary had engaged.

“Perhaps most bewildering is that Defendant [USCIS] rejected the evidence that [the beneficiary] would actually be performing these job duties if hired, despite no evidence to the contrary and no other apparent reason for failing to credit the evidence on this record,” the judge said.

Judge Frost continued:

Defendant continues to reject this record in favor of supporting a flawed denial. What Defendant overlooks is that the illogical leaps about which Plaintiff complains in its thorough briefing cannot be separated from the process in which Defendant engaged in its decisionmaking. Stated simply, Defendant did a poor job of keeping the record straight and its focus on the actual inquiry involved.

The judge pointed out that USCIS expressly admitted “inexplicable errors” in its briefing, such as references to the wrong sections of the OOH, and that the agency’s decision appeared to identify the proffered position incorrectly as a marketing manager rather than a marketing analyst.

Judge Frost said that these errors were not the essentially inconsequential lapses that USCIS suggested. Instead, he said, they constituted “a litany of incompetence that presents [a] fundamental misreading of the record, relevant sources, and the point of the entire petition.” If USCIS wants to deny a petition that will send the beneficiary to another country after 21 years of living in the United States, the judge said, “it should afford Plaintiff and [the beneficiary] a bare minimum level of professionalism, diligence, and reasoning.”

According to the court, the record indicated that a market and survey researcher is a distinct occupation with a specialized course of study that includes multiple specialized fields, that the beneficiary had completed such specialized study in the relevant fields of marketing and finance, and that Residential Finance Corporation had sought to employ him in such a position. Judge Frost said that USCIS had “ignore[d] the realities of the statutory language involved and the obvious intent behind them. The knowledge and not the title of the degree is what is important. Diplomas rarely come bearing occupation-specific majors.”

Judge Frost concluded that USCIS failed to meet the “fundamental threshold for rational decisionmaking and has instead engaged in conduct that cannot be separated from the taint of the foregoing errors.” He thus found that the denial of the petition was arbitrary, capricious, and an abuse of discretion, and ordered USCIS to grant the petition and change the beneficiary’s status to H-1B nonimmigrant.

TEXT OF THE CASE

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7. Brazilian Worker Loses Claim of National Origin Discrimination, Retaliation

In Guimaraes v. SuperValu, Inc., the U.S. Court of Appeals for the Eighth Circuit affirmed the judgment of the district court dismissing with prejudice a worker’s lawsuit against her former employer, SuperValu, Inc., for national origin discrimination and retaliation.

The plaintiff, Katia Agiuiar Guimaraes, has dual Brazilian and Canadian citizenship. She speaks English with an accent and her native language is Portuguese, the court noted. Her position changed and her new supervisor, Lisa Delia Bautista Grubbs, from Mexico, began to identify performance problems. A performance plan and mediation efforts by SuperValu were unsuccessful and Ms. Guimaraes was fired and subsequently filed suit. Ms. Grubbs never referred to Ms. Guimaraes’ Brazilian origin or mocked her accent, but Ms. Guimaraes alleged national origin discrimination, stating among other things that Ms. Grubbs asked her to repeat herself and to repeat Ms. Grubbs’ instructions to Ms. Guimaraes. Ms. Guimaraes also alleged that she heard that Ms. Grubbs had told someone else that she intended to try and have Ms. Guimaraes fired and to prevent her from getting a green card.

Among other things, the court found that Ms. Guimaraes did not present sufficient evidence to find that SuperValu’s legitimate nondiscriminatory reason for her termination – her performance – was a pretext for retaliation in violation of the law. The court noted that Ms. Guimaraes had not shown that Ms. Grubbs was “targeting” her because of her national origin. Examining the evidence as a whole, the court noted that a reasonable jury could find that Ms. Grubbs targeted her for any of these reasons: because of a personality conflict, because Ms. Guimaraes critiqued Ms. Grubbs’ management style, because Ms. Grubbs honestly did not believe Ms. Guimaraes was competent, or even because Ms. Guimaraes was trying to get a green card. None of these reasons violates the law. The court noted, quoting earlier decisions, that the employment discrimination laws “have not vested in the federal courts the authority to sit as super-personnel departments reviewing the wisdom or fairness of the business judgments made by employers, except to the extent that those judgments involve intentional discrimination.”

DECISION

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8. Business Organizations Send Letter on L-1 Issues to Obama Administration

Sixty-four business organizations signed a letter on L-1 legal and policy issues sent on March 22, 2012, to President Obama and the Secretaries of Commerce, Homeland Security, and State. New proposed L-1 guidance is anticipated from U.S. Citizenship and Immigration Services.

Among other things, the letter notes that it has become increasingly difficult for companies to procure visas to transfer existing employees in the United States to continue work. A significant concern, the letter notes, is that an “inconsistent and improperly narrowed” definition of specialized knowledge is being used to determine which employees qualify for L-1B status. When visas for key staff already employed in an organization are inexplicably delayed or denied, such delays or denials do not enhance compliance or enforcement and “do nothing except disrupt carefully laid business plans and create significant costs to the company and the American economy,” the letter states.

LETTER

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9. CBP Expands Global Entry to Additional Airports

U.S. Customs and Border Protection is adding four airports to the list of 20 participating major U.S. airports in the Global Entry international trusted traveler program. Global Entry allows pre-approved, low-risk participants expedited entry into the United States using Global Entry kiosks located at designated airports. The program is intended for frequent international travelers, but there is no minimum number of trips to qualify.

By September 22, 2012, Global Entry will be implemented at St. Paul International Airport (Minnesota), Charlotte Douglas International Airport (North Carolina), Phoenix Sky Harbor International Airport (Arizona), and Denver International Airport (Colorado), in addition to the 20 other airports listed in the notice, which is available at http://www.gpo.gov/fdsys/pkg/FR-2012-03-26/pdf/2012-7227.pdf.

The starting dates will be announced HERE.

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10. DOL Issues Guidance on Transition Period for Changes to H-2B Temporary Nonagricultural Labor Certification Process

The Department of Labor (DOL) has issued guidance to provide transition procedures to ensure that employers filing H-2B applications on or after April 23, 2012, have sufficient information to file appropriately. DOL issued the guidance following publication of its final rule on February 21, 2012, amending and creating H-2B regulations.

The H-2B final rule becomes effective on April 23, 2012. THE GUIDANCE.

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11. Syria Designated for Temporary Protected Status, DHS Announces

The Department of Homeland Security has designated Syria for temporary protected status (TPS) for a period of 18 months, effective March 29, 2012, through September 30, 2013. The registration period also runs from March 29, 2012, through September 30, 2013. The designation allows eligible Syrian nationals (and those having no nationality who last habitually resided in Syria) who have both continuously resided in and been continuously physically present in the United States since March 29, 2012, to be granted TPS.

The notice explains that TPS was designated for Syria because of “extraordinary and temporary conditions” in that country that prevent Syrian nationals from returning in safety. Among other things, the notice states that President Bashar al-Assad “used the military to suppress the [citizen protest] movement, and the Syrian Arab Republic Government launched a brutal crackdown, violently repressing and killing thousands of its own civilians.” The notice states that this activity continues, including “arbitrary executions, killing and persecution of protestors and members of the media, arbitrary detention, disappearances, torture, and ill-treatment.” There are also reports of attacks on and arrests of medical doctors treating wounded members of the opposition.

The Federal Register notice, which was published on March 29, 2012, and also describes the other eligibility criteria applicants must meet, is available HERE.

A related U.S. Citizenship and Immigration Services press release is available HERE.

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12. USCIS Grants Temporary Extension of Accommodation for H-2A Sheepherders

U.S. Citizenship and Immigration Services (USCIS) announced on March 20, 2012, that it extended an accommodation for H-2A workers in the sheepherding industry to transition to the three-year limitation of stay requirements. USCIS will require H-2A sheepherders who have reached their maximum three-year period of stay to leave the United States by August 16, 2012, and remain outside the country for at least three months before petitioning for H-2A classification again.

The H-2A program allows U.S. employers to bring foreign nationals to the United States to fill temporary agricultural jobs. H-2A nonimmigrant workers are subject to a three-month departure requirement once they have been in the United States in H-2A status for a maximum three-year period.

USCIS announced its limitation of stay requirements under a final rule that became effective on January 17, 2009. The agency granted an accommodation for H-2A sheepherders in December 2009 in deference to prior practice exempting them from the three-year limitation.

Some petitioners may have had a Form I-129, Petition for a Nonimmigrant Worker, denied solely on the basis that the H-2A sheepherder had exceeded the three-year limitation of stay. Affected petitioners may request that USCIS reopen these cases on a Service Motion by e-mail to csc-ncsc-followup@dhs.gov. (Include “H-2A Sheepherder Service Motion Request” in the subject line.)

USCIS will only review denials for which it has received a written request. Such requests will be accepted through April 20, 2012. No fee is required. If a petition was previously denied on other grounds in addition to limitation of stay issues, USCIS will not review the case through a written request.

NEW ANNOUNCEMENT

DECEMBER 2009 ANNOUNCEMENT

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13. ABIL Global: South Africa

Significant amendments to the Refugees Act and the Immigration Act, 2002, are expected; among other things, applying to change a visitor permit to a work or medical permit will be prohibited. Also, those wishing to work in South Africa for longer than three months must obtain an appropriate permit.

Pending Changes to the Work Permit Regime

Outside of refugee movements (which are regulated by the Refugees Act), immigration in South Africa is regulated by the Immigration Act, 2002, and the regulations to that Act. Two significant amendments to each of these Acts are expected. The Department of Home Affairs is revising the regulatory regime underpinning these Acts. These amendments may come into operation in the second quarter of 2012 or possibly as soon as the end of April 2012.

While the provisions of the Amendment Acts are obviously known, the Department tends not to reveal in advance what is coming in the regulations and is not required to engage stakeholders on their content. In some critical ways, it is impossible to understand the Amendment Acts before we have seen the new regulations.

One issue that will affect the deployment of staff to South Africa is, however, quite clear. Under the current Act (and even its predecessor), it is entirely lawful for an expatriate employee to travel to South Africa immediately to take up a post, particularly if he or she is the holder of a visa-exempt passport. The employee would enter the country as a visitor and then apply from inside the country for the appropriate work or transfer permit. Even if his or her visitor permit had expired before the main application had been adjudicated and approved, in practice the Department’s receipt for the application would serve as a de facto permit to remain in the country. It would not be a de facto “interim” work permit, however.

The new Act expressly provides that, from whenever it comes into operation, a person cannot travel into the Republic as a “visitor” and then, within a week or several, apply for a work permit. Travelling with one’s family and seeking study permits, or similar activities, would be a dead giveaway as to intent. The new Act reasons that to say that one is entering the country on the basis of being a visitor when he or she knows that the real purpose is to take up a position constitutes misleading the Department and entering on the basis of misrepresentation. So applying to change a visitor permit to a work permit (or medical permit) will be strictly prohibited. The visitor must instead return to his or her country of ordinary residence (with the family) and apply through the appropriate Embassy for the correct permit.

The new Act provides that “internal” changes of purpose will only be allowed in exceptional circumstances to be defined by the Minister in the new regulations.

Employers should be alert to these changes because a mistake could be a very expensive miscalculation.

Short-Term Deployments to South Africa: No ‘Back Door’ Work Permits

The South African Department of Home Affairs issued a confidential directive in December 2011 that seeks to regulate the issue of short-term work authorizations. It has supplemented that directive in recent weeks with policy guidelines on the same subject. The holders of visa-exempt passports (for example, U.S., Canadian, and European Union (EU) passports) are most affected.

Generally speaking, persons traveling on visa-exempt passports receive a visitor permit that is valid for three months upon arriving at a South African port of entry, unless they already hold some other residence status. It was often not realized that this visitor permit allowed the holder only to visit, not work.

Immigration legislation did, however, allow for persons needing to enter the Republic to work, so long as the work was for no longer than three months. This special category of visitor permit could be obtained upon arrival at a port of entry, so long as the passport was visa-exempt. This type of permit was intended principally for film crews, performing artists, models and support staff, counsel needing to consult with clients, and other such legitimate short-term deployments.

Until recently, the practice had been that upon presentation of a letter from the offshore employer asking for such short-term work authorization, this subcategory of visitor permit would be issued at the port of entry for a period of three months. However, the ease with which this could be done led to considerable abuse. There were instances of people actually working in the Republic on these visitor permits for years by “commuting” home every three months. This, it was thought, allowed the employer to bypass the requirements for an ordinary work permit. The Department of Home Affairs views such practice as immigration fraud.

The new regime has a number of key features. A well-motivated representation must be submitted in writing to the Director General of Home Affairs at least 10 days before the person is scheduled to arrive in South Africa. The Director General must approve the request in writing, and the employee must submit that approval to the port of entry upon arrival. This permit may only be obtained at a port of entry or at an embassy. The permit will not be extended; anyone needing to stay and work for longer than 90 days must instead apply for an appropriate work permit.

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14. New Publications and Items of Interest

Subscription service for labor certification updates. The Department of Labor’s Office of Foreign Labor Certification (OFLC) has launched a free subscription service to receive e-mail updates whenever the OFLC updates its website, including program updates, outreach announcements, new FAQs, and disclosure data. SUBSCRIBE HERE.

Effect of India-based tech firms on U.S. economy. eWeek.com recently reported in “Contribution of Indian Tech Companies to the U.S. Economy” that although overall unemployment in the United States remains disturbingly high, the direct workforce employed by the Indian IT sector has almost doubled in the past five years, to 107,000. The report also notes that the industry supports an estimated 280,000+ jobs in the United States. The Indian technology industry also has paid more than $15 billion in taxes in the past five years, the report notes. For more information on the report, see HERE.

International trade symposia. This year, U.S. Customs and Border Protection (CBP) plans to hold two trade symposia. One will be held on the West Coast in May and the other will be held on the East Coast later in the year. CBP will convene the 2012 West Coast Trade Symposium to discuss issues relating to the agency’s role in international trade initiatives and programs. The symposium will be held on Thursday, May 10, 2012, from 8:30 a.m. to 3 p.m. at the Long Beach Convention and Entertainment Center’s Grand Ballroom. The fee is $160. REGISTRATION INFORMATION. For more information, contact the Office of Trade Relations at (202) 344-1440 or tradeevents@dhs.gov.

Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, to be 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 issues.

The book will be discounted 20% for pre-orders through May 31. You can order HERE. The discount code is ABIL20 (enter this code at checkout). 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.

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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15. Member News

Laura Danielson has published several new blog entries. “Visiting the Hill: Where Is the Political Will?” and “Words Matter”

Cyrus Mehta has published a new blog entry. “Federal Court Reverses Unreasonable H-1B Denial for Market Research Analyst.” He also has co-authored a new blog entry. “Will The Revised USCIS Q&A on Establishing the Employer-Employee Relationship in H-1B Petitions Save Staffing Companies?”

Mr. Mehta was Program Chair for Basic Immigration Law 2012, sponsored by the Practising Law Institute and held in New York City on March 15, 2012. The course handbook and DVD are available HERE.

Angelo Paparelli has published a new blog entry. “Immigration Options for DREAMers Under EXISTING Law.”

The Wolfsdorf Immigration Law Group will present several free webinars. Upcoming topics include:

Thursday, April 12, 2012
Extraordinary Scientists (E-11), Outstanding Professors and Researchers (E-12), and National Interest Waivers (EB-2)

Thursday, April 26, 2012
International Student Work Visa Option

Thursday, May 10, 2012
Investors/Traders (E Visas) and Company Transferee (L Visas) and Green Cards (E-13)

Thursday, May 17, 2012
Religious Worker Visas – Ordained and Non-Ordained

Thursday, June 7, 2012
Artist and Entertainer Work Visas (O and P) and Green Cards (E-11)

Thursday, June 21, 2012
Work Visas and Green Cards for Athletes (O/P and E-11)

Thursday, July 12, 2012
Visa Options for International Scholars, Faculty and Staff

More information or register

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16. 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. FY 2013 H-1B Filing Season Rapidly Approaches – Beginning on April 2, 2012 (because April 1 is a Sunday), employers may file cap-subject H-1B petitions for fiscal year (FY) 2013, for employment starting on October 1, 2012, or later.

2. Witnesses Discuss Controversial DHS OIG Report at House Hearing – The report, which indicates that adjudicators are pressured to approve applications quickly with insufficient scrutiny, was based on testimonials and not empirical data; some say the data tell a different story.

3. March Visa Bulletin Continues Advances for India, China EB-2 Category – The category has advanced well over a year in just a few months.

4. EB-5 Investor Lawsuit Could Threaten Construction of South Dakota Beef Facility – A new lawsuit could threaten construction of a Northern Beef Packers cattle processing facility in South Dakota.

5. House Judiciary Committee Approves Bill Adding Israel to Nonimmigrant Investor Visa Eligibility List – The bill would allow Israelis to apply for E-2 visas if similarly situated U.S. nationals are eligible for such visas in Israel.

6. DOL Publishes Final Rule on Labor Certifications for H-2B Temporary Nonagricultural Employment – The final rule revises the process by which employers obtain a temporary labor certification to employ a nonimmigrant worker in H-2B status.

7. U.S. Embassy in London Discusses Visa Availability for Olympics, Expansion of Visa Reissuance Program for H-1, H-4 Applicants – Visa services will be limited during July and August for all nonimmigrant visa categories; the embassy encourages applications during the spring and early summer.

8. USCIS Launches ‘Entrepreneurs in Residence’ Initiative at Silicon Valley Summit – A tactical team will identify ways to enhance USCIS policies, practices, and training across a range of existing nonimmigrant visa categories used by entrepreneurs.

9. DS-230 Expires for Certain Applicants, Online Forms Launched – The online forms eventually will be implemented worldwide and required for all immigrant visa applications.

10. ABIL Global: Professional Immigration in France: Update and Outlook – The government instructed French labor authorities to apply greater scrutiny in adjudicating work permits and to interpret the regulations restrictively. On a more positive note, France has implemented the European Union Blue Card to attract skilled workers from third countries and facilitate mobility and permanent residence.

11. ABIL Global: Updates on Canada, Japan, Russia, United Kingdom – Citizenship and Immigration Canada will require Labor Market Opinions for temporary foreign IT workers who previously qualified for the exemption. Effective July 9, 2012, there will be a new Residency Management System for all foreign nationals residing in Japan. Six new positions have been added to Russia’s quota-exempt position list since last year. The United Kingdom is urging travelers for the Olympic Games to begin securing any necessary visas. The UK also has split the border agency into two agencies, one for administration and the other for border control.

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

13. Member News – Member News

14. Government Agency Links – Government Agency Links

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Details:

1. FY 2013 H-1B Filing Season Rapidly Approaches

Beginning on Monday, April 2, 2012 (because April 1 is a Sunday), employers may file cap-subject H-1B petitions for fiscal year (FY) 2013, for employment starting on October 1, 2012, or later.

On November 22, 2011, U.S. Citizenship and Immigration Services (USCIS) received a sufficient number of petitions to reach the statutory cap for FY 2012.  USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption as of October 19, 2011.  With the improving economy, they could run out faster this year. The Alliance of Business Immigration Lawyers (ABIL) recommends that employers file early and allow time for the labor condition application process. Contact your ABIL attorney now for guidance and help with the process.

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2. Witnesses Discuss Controversial DHS OIG Report at House Hearing

The House of Representatives’ Subcommittee on Immigration held a hearing on February 15, 2012, “Safeguarding the Integrity of the Immigration Benefits Adjudication Process,” at which witnesses discussed a new report by the Department of Homeland Security’s (DHS) Office of Inspector General (OIG). Judiciary Committee Chairman Lamar Smith (R-Tex.) opened the hearing. Witnesses included Alejandro Mayorkas, Director, USCIS; Charles K. Edwards, Acting Inspector General, Department of Homeland Security (DHS); Mark Whetstone, President, National Citizenship and Immigration Services Council and American Federation of Government Employees, AFL-CIO; and Bo Cooper, Partner, Berry Appleman and Leiden LLP.

Chairman Smith noted that DHS’s Inspector General responded with a report in January 2012 based on a request from Sen. Chuck Grassley (R-Iowa) about whether “senior [USCIS] leaders are putting pressure on employees to approve more visa applications, even if the applications might be fraudulent or the applicant is ineligible.” The OIG report, Rep. Smith noted, states that “nearly 25 percent of immigration service officers who responded to the IG survey ‘have been pressured to approve questionable applications.’ ” He said, “This rubberstamp process leaves an ink trail of fraud and abuse.”

Inspector General’s report. In response to Sen. Grassley’s request, the Inspector General interviewed 147 managers and staff, received 256 responses to an online survey, and reviewed USCIS policies related to the effort to detect benefit fraud. The report was based on testimonials, not empirical data. The report recommended process improvements, such as instituting more training and collaboration to improve the fraud referral process; developing additional quality assurance or supervisory review procedures to strengthen identification of names and aliases of those seeking an immigration benefit; performing nationwide onsite outreach efforts to discuss the performance management system with Immigration Service Officers (ISOs); developing standards to permit more time for an ISO’s review of case files; revising policy on requests for evidence (RFEs) to clarify the role that the requests play in the adjudication process; and developing a policy to “establish limitations for [USCIS] managers and attorneys when they intervene in the adjudication of specific cases.” The report stated that “special treatment of complainants fosters a sense among ISOs that USCIS inappropriately grants benefits in certain cases.”

The report noted that “[t]here may be a basis for clarifying adjudication policy for O visa petitions. A low approval rate is not one of them.” The Inspector General found that O visa petitions are granted at a high rate. “Quality assurance information we examined demonstrates that excessive O visa approvals are more likely than denials.” The report stated, “From January 2008 through March 2011, the California and Vermont service centers approved 40,719 of 44,386 O visa petitions (91.7%). This approval rate exceeds the approval rate for many other nonimmigrant worker petitions. During the same time period, the two centers approved 78.5% of H-1B (specialty occupations) and 76.1% of L-1B (specialized knowledge worker) petitions.”

The Inspector General’s report noted, however, that: (1) the testimonial evidence shared by interviewees may not represent views shared by other employees; (2) USCIS has taken action to diminish threats to the immigration benefits system; (3) general employee concerns about the impact of production pressure in the quality of ISO decisions “do not mean that systemic problems compromise the ability of USCIS to detect fraud and security threats; (4) “[n]o ISOs presented us with cases where benefits were granted to those who pose terrorist or national security threats”; and (5) “[e]ven those employees who criticized management expressed confidence that USCIS would never compromise national security on a given case.”

The report concluded, however, that “[e]ven with the additional security checks and process improvements USCIS has made in the past several years, national security and fraud concerns may require more thorough review of immigration applications and petitions.” The OIG noted that “[a]dditional documentation, or further insight gained through more interview questions, would ensure that ISOs have greater confidence before making a decision.” Also, the report suggests that “Congress may wish to raise the standard of proof for some or all USCIS benefit issuance decisions.”

Director Mayorkas’ testimony. Director Mayorkas said that early in his tenure at USCIS, having come to the agency in August 2009, he decided that USCIS must enhance the emphasis on quality in its adjudicative approach, meaning that “immigration benefit decisions are informed, adhere to the law and the facts, are made in a timely manner, and further the integrity and goals of the immigration system.” He said he realigned the agency’s structure to institutionalize a culture of quality and created the Fraud Detection and National Security Directorate (FDNS), previously an office within a directorate. Mr. Mayorkas outlined various anti-fraud and national security efforts his agency has taken. He said that if any supervisors are instructing employees to “be fast at the expense of quality,” that should be raised to top leadership.

Mr. Whetstone’s testimony. Mr. Whetstone said that USCIS headquarters has heard for years staff recommendations to allow its adjudicators more time to review files, but little has happened. He said that quantity-based production standards continue to be perceived as having a major impact on adjudicators, noting that several officers reported working through lunch and rest breaks to reach quota levels necessary to attain a satisfactory rating. He said that production pressure has never been reduced. Mr. Whetstone also noted a lack of sufficient anti-fraud training.

Mr. Cooper’s testimony. Mr. Cooper noted that he was an attorney for the former Immigration and Naturalization Service for over a decade, and served as the agency’s General Counsel from 1999 to 2003. He also works closely with Compete America, a coalition of corporations, universities, research institutions, and trade associations that advocates for reform of U.S. immigration policies on high-skilled foreign professionals. He took issue with several of the Inspector General’s conclusions and recommendations, stating in written testimony that they “lack foundation,” are contrary to what actually happens, and “would be deeply problematic if they were to gain acceptance and inform policy choices.” He said that the report’s conclusions “rest in key respects on a deficient base of information,” noting the lack of data and the report’s reliance on a limited number of interviews and surveys. He said that the limited interviews and surveys could be seen as a starting point but that instead of being considered preliminary feedback, the report draws “very serious conclusions.”

Mr. Cooper said that USCIS has released official data since the report came out. He noted that recent analysis shows that the data refute concerns “that USCIS may be institutionally biased toward unjustified approvals and that the agency observes policies that would suppress RFE issuance.” The data tell the opposite story, he said: “Particularly with respect to the key nonimmigrant categories for foreign professionals, denial rates and RFE rates have risen very sharply in recent years.”

The “most startling example,” Mr. Cooper said, appears in the L-1 program, which is used by multinational corporations to transfer managers, executives, and specialists into the United States. Noting that such visas “are an essential component of a huge range of productive economic activity in this country,” he said that L-1 visas are critical to attracting foreign investment that supports the creation of jobs for U.S. workers and are critical when U.S. companies acquire companies based oversees and need to have the acquired company’s specialists come to the United States to integrate their expertise and processes. L-1 visas are also critical to companies who need to bring specialists from their overseas affiliates into their research centers and operations in the United States, he noted. “Without predictable, reliable access to these visas, employers find themselves having to move jobs and projects to other countries.”

The data for employees with specialized knowledge in the L-1B program “shows a steep rise in denials and requests for evidence beginning in 2008,” he said, noting that the denial rate for L-1B petitions more than tripled in 2008 and is now at nearly quadruple the pre-2008 rate, at 27 percent in 2011. The RFE rate change is even starker, he said. From 2005 to 2011, the rate soared from 9 percent to 63 percent of L-1B cases.

He also noted that in the L-1A program for managers and executives being transferred within multinational corporations, the RFE rate rose from 10 percent in 2005 to 51 percent in 2011. Denial rates rose 75 percent over five years, from 8 percent in 2007 to 14 percent in 2011. In the H-1B program for professionals in specialty occupations, the denial rate increased from 11 percent in 2007 to 17 percent in 2011. Over a quarter of all H-1B filings generated an RFE in 2011.

Seen in the light of this data, Mr. Cooper said “there is no basis for the concern expressed in the OIG report that USCIS has an institutional bias in favor of approvals or against RFEs.” In fact, he said, the data show the opposite trend. Noting that USCIS said in its response to the OIG report that it is reviewing its RFE policy and aims to issue new RFE guidance this year, Mr. Cooper recommended that the new policy reflect “the needs of today’s business environment and the innovation economy,” and that it be monitored carefully once put into practice.

U.S. Chamber of Commerce letter. The U.S. Chamber of Commerce submitted a letter for the hearing record that said the OIG report’s conclusions were not statistically valid and were inconsistent with the experiences of the Chamber’s members in dealing with USCIS. The Chamber challenged “the notion that a few employees at the agency responsible for adjudicating benefits for the nation’s immigrants can, or should, drive changes in the burden of proof or other legal criteria impacting all foreign nationals and their sponsoring employers entitled to benefits under our immigration laws.” The Chamber echoed Mr. Cooper’s concerns that the OIG report draws conclusions that are too broad in relation to the interview and survey results upon which they are based. The letter includes examples of companies’ experiences of visa denials and RFEs that delayed or prevented the companies from moving forward with new product development or hiring for U.S.-based manufacturing and other jobs.

The Chamber’s letter also notes that “companies have not been able to manage their intracompany transfers of specialized knowledge staff with any predictability.” The letter identified four critical issues companies recently identified during a January discussion hosted by the Chamber on L-1B law and policy. that result in increased L-1B delays, denials, and inconsistency: (1) an improper focus on numbers of similarly situated staff; (2) an improper focus on the O-1 standard of accomplishment; (3) failure to recognize legitimate business requirements; and (4) improper de novo review of extensions. The Chamber noted that these “four agency misconceptions” have led to “an unfounded narrowing of the definition of specialized knowledge.”

Chairman Smith’s opening statement and witness testimony are available here.

The U.S. Chamber of Commerce’s letter is available here.

The National Foundation for American Policy’s February 2012 brief, from which Mr. Cooper and the Chamber drew data analyses, is available here.

The OIG report, “The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers,” includes USCIS’s response to the OIG’s recommendations. It is available here.

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3. March Visa Bulletin Continues Advances for India, China EB-2 Category

The March 2012 Visa Bulletin shows that the priority date for the India and China employment-based second preference (EB-2) categories is May 1, 2010, which is a four-month advance over the February cut-off date of January 1, 2010. In January, the date was January 1, 2009, so the category has advanced well over a year in just a few months. The Department of State’s Visa Office explained:

The China and India Employment Second preference cut-off date has been advanced at a rapid rate in recent months. As previously noted, this action was intended to generate significant levels of new filings for adjustment of status at U.S. Citizenship and Immigration Services (USCIS) offices. USCIS has reported that the rate of new filings is currently far below that which they had anticipated, prompting an even more aggressive movement of the cut-off date for January and possibly beyond. While this action greatly increases the potential for an eventual retrogression of the cut-off at some point during the year, it also provides the best opportunity to utilize all numbers available under the annual limit.

The March bulletin is available here.

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4. EB-5 Investor Lawsuit Could Threaten Construction of South Dakota Beef Facility

A new lawsuit could threaten construction of a Northern Beef Packers (NBP) cattle processing facility in South Dakota. NBP decided not to pay a $50,000-per-investor commission (with potentially up to double that as a “success fee”) for recruiting EB-5 investors to Henry Global Consulting Group because it did not bring in as many investors as it had agreed to recruit. According to reports, Henry Global then persuaded several investors to sue the regional center. The lawsuit alleges that investors did not receive crucial facts about the project and were not included in key decisions as agreed upon.

This is just the latest in a long series of problems for the project. Almost six years after developers purchased the site, the project has been delayed continually by lawsuits, liens, and tax problems.

The compliant is available here.

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5. House Judiciary Committee Approves Bill Adding Israel to Nonimmigrant Investor Visa Eligibility List

On February 28, 2012, the U.S. House of Representatives’ Committee on the Judiciary approved legislation that would add Israel to the E-2 nonimmigrant visa eligibility list of countries. The bill would allow Israelis to apply for E-2 visas if similarly situated U.S. nationals are eligible for such visas in Israel. Rep. Howard Berman (D-Cal.), said the legislation would bring Israeli business and innovations in “security and defense technologies, medicine, agriculture, high-tech, and clean energy” to the United States.

Last May, the Senate introduced a companion bill but has not yet moved it through the Senate Judiciary Committee.

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6. DOL Publishes Final Rule on Labor Certifications for H-2B Temporary Nonagricultural Employment

The Wage and Hour Division (WHD) of the Department of Labor’s (DOL) Employment and Training Administration published a final rule effective April 23, 2012, revising the process by which employers obtain a temporary labor certification from the DOL for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2B status. WHD chose to revert to a compliance-based rather than the current attestation-based certification process. The regulations are also intended to provide increased worker protections for both U.S. and foreign workers.

The final rule creates a national registry for all H-2B job postings and increases the recruitment period for U.S. workers. The rule also requires the rehiring of former employees when available. In addition, the rule extends H-2B program benefits, such as transportation costs and wages, to U.S. workers performing substantially the same work as H-2B workers.

WHD received a large number of comments from the ski industry requesting an exemption from the regulations. Many of the commenters believed that because ski instructors require skills or experience, under the new rules they would be ineligible for the H-2B program. Generally, job positions certified under the H-2B program are low-skilled, WHD explained, requiring little or no experience. “We do recognize, however, that there are some occupations and categories under the H-2B program that may require experience and/or training. Employer applicants demonstrating a true need for a level of experience, training or certification in their application have never been prohibited in the H-2B program, given the breadth of the definition of H-2B under the INA,” WHD noted. The agency said it has determined that an exemption for the ski industry “is not appropriate as the commenters presented no valid argument as to why exemption is necessary. There is nothing about the workers they seek to hire that prevents them from participating in the H-2B program. Ski resorts are fixed-site locations that run on a seasonal basis with standard operating procedures.”

The final rule was published in the February 21 edition of the Federal Register. The H-2B program is limited by law to a cap of 66,000 visas per year.

The final rule is available here. The announcement is available here. Fact sheets and other information are available here and here.

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7. U.S. Embassy in London Discusses Visa Availability for Olympics, Expansion of Visa Reissuance Program for H-1, H-4 Applicants

The U.S. Embassy in London recently released a notification of limited nonimmigrant visa services during the Olympics and an expansion of the Visa Reissuance Program to include H-1 and H-4 visa applicants.

The embassy noted that visa services will be limited during July and August for all nonimmigrant visa categories. The embassy encourages applicants “to apply for visas during the spring and early summer as appointment availability cannot be guaranteed.” Appointments are scheduled through the Operator Assisted Information Service.

Also, the embassy noted that travelers planning on entering the United States visa-free under the Visa Waiver Program by air or sea carrier who do not have travel authorization approval under the Electronic System for Travel Authorization (ESTA) are encouraged to register now for summer travel. If registration is denied, visas will be required.

The embassy also said that the Visa Reissuance Program has been expanded to include H-1 visa applicants and their derivatives who are renewing a visa of the same classification that has expired in the last 12 months. Other qualifying criteria apply and can be found here. The Program continues to be available to O, P, J and C-1/D visa applicants. Applicants must be physically present in the United Kingdom to use the Visa Reissuance Program, and a consular officer reserves the right to request that an applicant appear in person for an interview after reviewing his or her application.

Callers within the United Kingdom should dial 09042-450-100. Calls to this line are charged at £1.23 per minute plus network extras. Callers from the United States should dial 1-866-382-3589. U.S. callers are charged a fixed rate of $16 payable by credit card (Visa, MasterCard, or American Express only).

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8. USCIS Launches ‘Entrepreneurs in Residence’ Initiative at Silicon Valley Summit

On February 22, 2012, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas met with more than 150 Silicon Valley entrepreneurs, academics, and government officials at NASA Research Park in Moffett Field, California, to launch the Entrepreneurs in Residence (EIR) initiative and gather information.

USCIS said that the panel discussions and breakout sessions held at the summit would inform the work of a newly formed EIR tactical team, which will “work collaboratively over the next several months to ensure that immigration pathways for foreign entrepreneurs are clear and consistent, and better reflect today’s business realities. The tactical team will identify ways to enhance USCIS policies, practices and training across a range of existing nonimmigrant visa categories used by entrepreneurs.”

Mr. Mayorkas also presented five naturalized immigrant entrepreneurs with USCIS’s “Outstanding Americans by Choice” awards. One award recipient, Vivek Wadhwa, an entrepreneur and researcher at Duke University, said the EIR initiative cannot fix by itself the “reverse brain drain” of foreign-born entrepreneurs who receive an education in the United States and then leave to form companies in their home countries because of concerns about U.S. immigration laws and regulations. “We will now have created competitors worldwide we didn’t need to create,” he warned. A Scottish entrepreneur, Scott Allison, said at the summit that the immigration process “shouldn’t be something we have to worry about. But we do have to worry about it. I don’t know where my home is.”

USCIS’s announcement is available here.

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9. DS-230 Expires for Certain Applicants, Online Forms Launched

A new DS-260 form has replaced the DS-230 for certain applicants. The DS-260, Online Immigrant Visa Application & Registration, and DS-261, Choice of Address and Agent, are electronic visa application forms completed and submitted online to the Department of State via the Internet through the Consular Electronic Applications Center. The forms may be partially completed, saved online to finish, and submitted later; or they can be completed and submitted in a single session.

The forms eventually will be implemented worldwide and required for all immigrant visa applications. Additional information, such as the current conditions and limitations on applicability of the forms, is available here.

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10. ABIL Global: Professional Immigration in France: Update and Outlook

A French government circular of May 31, 2011, instructed the labor authorities to apply greater scrutiny in adjudicating work permits and to interpret the regulations restrictively, with the aim of reducing the number of foreign nationals being admitted to France for professional purposes. On a more positive note, France has created a new immigration category by implementing the European Union (EU) Blue Card directive to attract skilled workers from third countries and facilitate the mobility and permanent residence of such workers within the EU. Details of these developments are provided below.

Restrictive measures: greater scrutiny of employer and employment. Under the government circular, the labor authorities are to deepen the scrutiny with which they verify the existence of the employer and its past and present compliance with the labor, social security, and immigration regulations. Any violations may be sufficient grounds to deny a work permit application.

Labor market tests must be applied strictly and an application will be denied if market analysis reveals insufficiently high demand for the position sought to be filled or the possibility of filling the position by a training program in the near future. Any advertising seeking candidates for a position must be carried out for a reasonable period of time. “Two to three months” is considered reasonable, whereas in the past the administration considered two to three weeks reasonable.

The labor authorities also must evaluate if the foreign worker is not under- or overqualified for the employment offered. If he or she is underqualified, the application must be denied. If he or she is overqualified, the advertisement must be modified and published again.

Such authorities must also verify that:

• the compensation meets the appropriate thresholds, as determined by the collective bargaining agreements, market, and the minimum salary laws;
• the candidate has adequate knowledge of the French language; and
• the candidate is provided adequate housing.

Restrictive measures: greater scrutiny of change-of-status applications. The circular urges French labor authorities to examine any request for a change of status very carefully, especially when such applications are made by foreign students. The circular states that foreign students must return to their home countries after the end of the schooling.

These instructions resulted in a massive protest by universities and students, and even criticism within the government. The government issued a new circular on January 13, 2012, which provides guidance to adjudicating officers to avoid tarnishing the attractiveness of French schools to foreign students and undermining French business in need of young foreign talent.

These restrictive measures do not apply to work permit categories which receive preferential processing, such as intra-company transfers, secondments, and seasonal workers.

These restrictive measures have increased the processing time for all work permit categories.

List of jobs for which workers are in shortage reduced by half. A decree of August 11, 2011, has reduced to half the list of jobs in certain fields where employers encounter difficulties in recruiting workers. The list now contains only 14 job categories, as opposed to 30 previously. Foreign workers may fill these jobs without first having to go through a labor market test as part of their work permit application. The reduced list applies throughout the French territory, unlike the previous regional lists, which allowed local market situations to be taken into account. This list will be revised by August 1, 2013, at the latest.

France has signed bilateral agreements regarding the control of migration flows with several countries (Brazil, Burkina Faso, Cameroon, Cape Verde, Gabon, Mauritius, Benin, Congo, Senegal, and Tunisia). These agreements allow nationals to obtain work permits under conditions negotiated country by country, and may contain a more generous list of jobs.

Good news: the French Blue Card permit. Law no. 2011-672 of June 16, 2011, and decree no. 2011-1049 of September 6, 2011, provide the legal framework for the transposition of the EU “Blue Card” directive into French law.

The qualifying criteria are in accordance with the criteria stated in the EU directive:

1. An employment contract with a duration of one year or more;
2. A minimum annual salary threshold of 1.5 times the average salary of reference, which is determined by the Minister of Interior on an annual basis. According to the current reference salary (€ 34,296), this annual salary threshold is € 51,444; and
3. A three-year higher education diploma or equivalent knowledge through five years of experience.

A qualifying third-country national is issued a joint residence and work permit for the length of employment, with maximum validity of three years. This permit is renewable. An accompanying spouse is issued a “Private and Family Life” category work permit, renewed annually for as long as the main applicant has a valid Blue Card permit.

The Blue Card may also be issued to a third-country national who already holds a Blue Card issued by another member state and wants to accept employment in France. This can occur after 18 months of residence under the initial Blue Card. The application is made within one month of arrival in France. The applicant need not present a long-stay French visa.

The Blue Card permit is issued without labor market testing. Its beneficiary and his or her spouse may qualify for the EU long-term resident permit after five years of residence under the Blue Card in the EU, of which only the last two years must be in France.

The French authorities have up to 90 days to adjudicate the Blue Card application and up to 6 months to adjudicate the accompanying spouse residence permit.

The advantages of the Blue Card over other categories are:

• It does not require an intra-company prior employment;
• Mobility within EU is facilitated;
• Acquisition of long-term resident status is facilitated; and
• The qualifying criteria are very precise (leaving less room for the discretion of the government).

The Blue Card is expected to be very good news for skilled third-country nationals who are unable to qualify under other categories.

Prognosis for the future: France has one of the highest birth rates in Europe. It is doing fine in replenishing its population. But France still needs immigrants more than ever to satisfy its need for qualified workers and to be a prominent actor in a global economy. The current government understood this well when it created regulations adapted to global employment needs of multinational groups and allowed graduating foreign students to seek employment in France, and thus keep the talent in the country.

So what happened? The electoral campaign started this year and immigration is a hot issue in France, as it is in most other European countries. With its new anti-business immigration stance, the government is trying to recapture the voters it may have antagonized by its pro-business conduct in preceding years.

Business should be back to normal by the middle of this year, after the presidential and parliamentary elections.

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11. ABIL Global: Updates on Canada, Japan, Russia, United Kingdom

CANADA

Following the termination of the Facilitated Process of Information Technology Workers Program (Labor Market Exemption) in British Columbia in December 2011 and in all other provinces in September 2010, Québec authorities have also announced the end of the program for the seven different types of IT occupations. The program expedited the admission of foreign workers in certain IT occupations, mainly those in software development.

As a result, Citizenship and Immigration Canada will require Labor Market Opinions (LMO) for temporary foreign IT workers who previously qualified for the exemption. The process will be much lengthier and will require a job posting of at least 14 days, followed by an application for the LMO work permit.

JAPAN

Effective July 9, 2012, there will be a new Residency Management System for all foreign nationals residing in Japan. Consequently, the existing Alien Registration Card (ARC) will be replaced by a new Resident Card, which will serve as a form of identification for those foreigners working and living in Japan for more than 90 days. The Resident Card will be issued upon arrival at the four major international airports in Japan: Chubu, Haneda, Kansai, and Narita. Those travelers entering through other airports will receive their Resident Card in the mail after they arrive in Japan.

The new program will reduce the minimum period of stay from one year to three months and extend the maximum period of stay from three years to five years. Those Resident Card holders travelling abroad while in Japan will no longer need to obtain a re-entry permit as long as they return within one year. Currently, a re-entry permit is required for any travel outside of Japan.

Foreign nationals currently holding valid ARCs that expire on or after July 8, 2015, must obtain the new Resident Card, but can do so anytime before that date. All others can continue using their current ARCs until expiration and obtain the Resident Card at the time of renewal.

RUSSIA

The Russian government has announced the work permit quota for 2012, as well as the list of 41 positions that are quota-exempt. The quota number has not changed significantly since last year and will continue to be distributed among the various regions in the country. Companies looking to sponsor foreign workers in Russia in 2013 must submit their forecasts to the local labor authorities before May 1, 2012.

Six new positions have been added to the quota-exempt position list since last year, including design engineers, electrical engineers, technicians, and others. Work permits for highly skilled professionals continue to be quota-exempt but such positions must meet strict salary requirements.

UNITED KINGDOM

The government of the United Kingdom is urging all those who plan to come to the UK during the Olympic Games to plan ahead and begin making travel arrangements, including securing any necessary visas. The London 2012 Games will be the biggest event the UK has hosted and the government expects many extra visitors during the already busy summer season.

The UK government has also announced the creation of a new agency, the UK Border Force, which will take over border control and inspection procedures at the UK ports of entry starting March 1, 2012. The UK Home Secretary said that after it was revealed that thousands of people were let into the country without proper immigration checks, the UK Border Agency (UKBA) would be split into two separate bodies. The Border Force will “become a separate operational command, with its own ethos of law enforcement, led by its own Director General, and accountable directly to ministers.” UKBA will continue to manage immigration administrative functions such as processing work and residence permit applications.

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12. New Publications and Items of Interest

Dramatic increase in denials of L-1, H-1B petitions. An analysis of new data obtained from U.S. Citizenship and Immigration Services (USCIS) by the National Foundation for American Policy reveals a dramatic increase in denials of L-1 and H-1B petitions over the past four years, which the report concludes harms the competitiveness of U.S. employers and encourages companies to keep more jobs and resources outside the United States. Data indicate that much of the increase in denials involves Indian-born professionals and researchers. The report finds that adjudicators or others at USCIS “changed the standard for approving L-1B and other petitions in recent years, beginning in FY 2008 and FY 2009.” The report says the high denial rates “belie the notion [that] adjudications have become more lenient.” The report says that the dramatic increase in denial rates and requests for evidence “raises questions about the training, supervision and procedures” of the USCIS career adjudicatory bureaucracy and that denying employers the ability to transfer in key personnel or gain entry for a skilled professional or researcher “harms innovation and job creation in the United States, encouraging employers to keep more resources outside the country to ensure predictability.”

The report is available here.

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.

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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13. Member News

Laura Danielson has published several new blog entries. “Why So Much Vitriol Toward ‘Illegals’?” and “Hypocrisy Knows No Boundaries.”

Ms. Danielson also was on an hour-long radio program, WPCR’s “Turn of the Page,” to discuss Green Card Stories.

Mark Ivener and Charles Kuck were quoted in the February 3-9, 2012, edition of New Orleans CityBusiness, in an article on EB-5 investors, “Lawmaker Wants Foreign Investment for Terminal.” In an article about Louisiana state senator A.G. Crowe wanting to use EB-5 investment funds to finance the Louisiana International Gulf Transfer Terminal, currently an idea for a port at the mouth of the Mississippi River, Mr. Kuck said the EB-5 program is ill-suited for such massive, unfunded ventures. “Some people view this EB-5 program as this limitless supply of money from naïve foreign investors. I have frankly yet to meet investors willing to say ‘I’ll be the first investor in your program and hopefully two years from now you will have actually done your deal and created jobs.” He said EB-5 investors calculate their risk and they are leery of being guinea pigs for projects lacking seed funding. Although the article notes that there are currently 194 regional centers, Mr. Kuck said there are “no more than 10 or a dozen that any rational person would recommend” to EB-5 investors. Mr. Ivener commented on potential conflicts of interest that can result if brokers represent regional centers to which they are steering investors. Mr. Ivener noted that it is common to represent both types of clients separately.

A profile on Mr. Kuck was published in Super Lawyers in the March 2012 edition.

Cyrus Mehta has published several new blog entries. “Immigration Reform Through Green Card Stories” and “What A Company Needs To Know That Hosts But Does Not Employ Skilled Nonimmigrant Workers.”

Angelo Paparelli has published a guest blog post by Stephen Yale-Loehr, “DREAM or NIGHTMARE? Why Congress Should Reject a Military-Only Version of the DREAM Act.”

Mr. Paparelli has published a new blog entry, “No More Waiting on Legal Immigration,” reprinted with permission from The New York Law Journal.

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14. 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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