Headlines:

1. DOJ’s Office of Special Counsel Lists Employer Best Practices During Worksite Enforcement Audits – The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices released do’s and don’ts for employers facing ICE audits.

2. USCIS Announces Several Thousand EB-5 Green Cards Issued So Far in First Quarter of FY 2012, Releases Latest Stats – Between October and mid-January, 2,364 EB-5 green cards were issued. At that rate, over 9,000 EB-5 visas might be issued this fiscal year, which is very close to the statutory cap of 10,000.

3. New York City’s Newest Full-Service Immigration Office Opens in Queens – The new office, located at 27-35 Jackson Avenue, includes an Application Support Center, a naturalization ceremony room, and interview and file rooms. The hours are 7 a.m. to 3:30 p.m.

4. USCIS Announces 58 Countries Whose Nationals Are Eligible for H-2A and H-2B Participation – In addition to the 53 countries currently on the list, Haiti, Iceland, Montenegro, Spain, and Switzerland were designated for the first time this year.

5. DHS Extends TPS Designation for El Salvador – The 18-month extension will remain in effect through September 9, 2013. The 60-day re-registration period began January 9, 2012, and will remain in effect until March 9, 2012.

6. DOS Launches 90-Day Pilot Program Allowing Online Passport Card Applications – The U.S. passport card costs $30 for current passport book holders, and is valid for land and sea travel to and from Canada, Mexico, the Caribbean, and Bermuda. It is not valid for international air travel.

7. AAO Denies RC Application to Build Resort Suites – The AAO found that the applicant’s proposal was a marketing strategy to attract buyers for vacation suites rather than investors of capital in a new commercial enterprise.

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links

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Details:

1. DOJ’s Office of Special Counsel Lists Employer Best Practices During Worksite Enforcement Audits

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices has released the following do’s and don’ts for employers facing audits by U.S. Immigration and Customs Enforcement (ICE):

DO:

• Develop a transparent process for interacting with employees during the audit, including communicating with employees that the employer is subject to an ICE audit.
• Provide all workers with a reasonable amount of time to correct discrepancies in their records identified by ICE. Treat all workers in the same manner during the audit, without regard to national origin or citizenship status. This means that all workers with like discrepancies who are asked to present additional documents are provided with the same timeframes and the same choice of Form I?9 documents to present.
• If your workers are represented by a union, inform the union of the ICE audit and determine whether a collective bargaining agreement triggers any obligations.
• Inform employees from whom you seek specific information that you are seeking this information in response to an ICE audit.
• Communicate in writing with employees from whom you seek information, and describe the specific basis for the discrepancy and/or what information you need from them. Follow the instructions on the ICE notice and the instructions for the Form I?9 when seeking to correct Form I?9 defects, including the Lists of Acceptable Documents and the anti?discrimination notice.

DON’T:

• Selectively verify the employment eligibility of certain employees based on their national origin or citizenship status based on the receipt of an ICE Notice of Inspection.
• Terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I?9 documents.
• Require employees to provide additional evidence of employment eligibility or more documents than ICE is requiring you to obtain.
• Limit the range of documents that employees are allowed to present for purposes of the Form I?9.
• Treat employees differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the U.S.

The list is available at http://www.justice.gov/crt/about/osc/pdf/publications/worksite_enforcement.pdf.

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2. USCIS Announces Several Thousand EB-5 Green Cards Issued So Far in First Quarter of FY 2012, Releases Latest Stats

The Department of State issued 2,364 EB-5 green cards between October 1, 2011, and mid-January 2012, U.S. Citizenship and Immigration Services (USCIS) announced at its quarterly EB-5 stakeholders meeting on January 23, 2012. At that rate, over 9,000 EB-5 visas might be issued this federal fiscal year, which is very close to the statutory cap of 10,000.

USCIS refused to discuss what it would do about pending EB-5 petitions if Congress fails to renew the regional center pilot program by September 30, 2012. Approximately 92 percent of I-526 petitions (Immigrant Petition by Alien Entrepreneur) filed each year are filed by investors in regional centers. Historically, about 80 to 85 percent of I-526 and I-829 EB-5 petitions are approved each year. The California Service Center (CSC) now has four teams of EB-5 adjudicators, an increase from one team a year ago. Despite the increased staffing, case adjudication times have not improved because of the increase in case filings.

USCIS also announced that it would defer to state determinations on what constitutes a targeted employment area (TEA) for EB-5 purposes. The agency will check the data behind states’ methodology, however. USCIS did not say whether a single census tract may qualify as a geographic area. USCIS said that would be covered in written materials not yet available publicly, and referred stakeholders to its December 2009 memorandum for further details (available at http://www.uscis.gov/USCIS/Laws/Memoranda/Static%20Files%20Memoranda/Adjudicating%20of%20EB-5_121109.pdf).

USCIS acknowledged that many regional center applications are being held up at headquarters pending resolution of economic methodology issues. The USCIS hopes to resolve those issues soon. USCIS is analyzing all the I-924A forms submitted by regional centers and will draft a report that includes regional center-specific information sometime this year. The USCIS acknowledged growing pains in determining what constitutes a “shovel-ready” project for EB-5 purposes. It hopes to address this issue later this year when it revises the I-924 form to provide greater consistency.
USCIS also released its latest data on EB-5 filings and regional centers (RCs):

• RC approvals continue to increase. As of January 28, 2012, there are 217 approved RCs operating in 40 states, including the District of Columbia and Guam.
• The agency reported 41 initial RC proposal filings in the first quarter of fiscal year (FY) 2012, compared to 192 initial filings in all of FY 2011 and 110 initial filings in all of FY 2010. The number of amended RC proposal filings was 17 by the end of the first quarter; there were 86 filings received for all of FY 2011 and 42 filings received for all of FY 2010.
• In the first quarter of FY 2012, the agency approved 14 of the 41 initial RC proposals and denied 22, an approval rate of 39 percent. In FY 2011, when USCIS approved 80 and denied 51, an approval rate of 61 percent. The approval rate of amended RC proposals in the first quarter of FY 2012 was 57 percent, with 4 approvals and 3 denials. By comparison, in FY 2011 USCIS approved 43 amended RC proposals and denied 7, an approval rate of 86 percent.
• USCIS also reported significant increases in individual I-526s and I-829s (Petition by Entrepreneur to Remove Conditions). In the first quarter of FY 2012, USCIS received 1,293 I-526 petitions, compared to 3,805 for all of FY 2011. USCIS received 250 I-829 petitions in the first quarter of 2012. By comparison, USCIS received 2,345 I-829 petitions in all of FY 2011.
• In the first quarter of FY 2012, the agency approved 1,076 I-526 petitions and denied 222, an approval rate of 83 percent, while in all of FY 2011 USCIS approved 1,563 and denied 11, an approval rate of 93 percent. USCIS approved 1,067 I-829 petitions and denied 46 in all of FY 2011, an approval rate of 96 percent.

The full list of RCs by state is available at http://www.uscis.gov/eb-5centers/.

The next USCIS stakeholder engagement meetings are scheduled for May 1, 2012 (general EB-5 discussion); July 26, 2012 (regional center discussion); and October 18, 2012 (general EB-5 discussion). See http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e0138e0732344310VgnVCM100000082ca60aRCRD&vgnextchannel=e0b081c52aa38210VgnVCM100000082ca60aRCRD for additional details on the engagement meetings.

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3. New York City’s Newest Full-Service Immigration Office Opens in Queens

On January 20, 2012, U.S. Citizenship and Immigration Services (USCIS) opened its newest immigration field office in Queens, New York.

The new office, located at 27-35 Jackson Avenue, includes an Application Support Center (which offers fingerprinting and photographic services as part of the application process), a naturalization ceremony room, and interview and file rooms. The hours are 7 a.m. to 3:30 p.m. The Queens office is expected to serve about 500 people each business day.

Approximately 100 employees were transferred to the Queens office from the now-closed Garden City, Long Island, office. USCIS recently opened an additional office in Holtsville, Long Island.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3ad54c23397f4310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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4. USCIS Announces 58 Countries Whose Nationals Are Eligible for H-2A and H-2B Participation

U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS), in consultation with the Department of State, has identified 58 countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) programs for the coming year. Each country’s designation is valid for one year from the date of publication.

USCIS generally may only approve H-2A and H-2B petitions for nationals of countries the Secretary of Homeland Security has designated as eligible to participate in the programs. USCIS may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.

In addition to the 53 countries currently on the list, Haiti, Iceland, Montenegro, Spain, and Switzerland were designated for the first time this year.

Effective January 18, 2012, nationals of the following 58 countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Montenegro, Nauru, the Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Switzerland, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay and Vanuatu.

This new list does not immediately affect the status of beneficiaries who are currently in the United States in H-2A or H-2B status, unless they apply to change or extend their status.

The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2012-01-18/pdf/2012-870.pdf.

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5. DHS Extends TPS Designation for El Salvador

The Department of Homeland Security (DHS) has extended the designation of El Salvador for temporary protected status (TPS) for 18 months from its current expiration date of March 9, 2012. The 18-month extension of the TPS designation of El Salvador is effective March 10, 2012, and will remain in effect through September 9, 2013. The 60-day re-registration period began January 9, 2012, and will remain in effect until March 9, 2012.

DHS determined that an extension is warranted because the conditions in El Salvador that prompted the TPS designation continue to be met. There continues to be a “substantial, but temporary,” disruption of living conditions in El Salvador resulting from a series of earthquakes in 2001, and El Salvador “remains unable, temporarily, to handle adequately the return of its nationals.”

The notice sets forth procedures necessary for nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) with TPS to re-register and to apply for an extension of their employment authorization documents (EADs) (Forms I-766) with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who previously registered for TPS under the designation of El Salvador and whose applications have been granted or remain pending. Certain nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions.

USCIS said it will issue new EADs with a September 9, 2013, expiration date to eligible Salvadoran TPS beneficiaries who timely re-register and apply for EADs under this extension. DHS recognizes that all re-registrants may not receive new EADs until after their current EADs expire on March 9, 2012. Accordingly, the notice automatically extends the validity of EADs issued under the TPS designation of El Salvador for six months, through September 9, 2012, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on the I-9 and E-Verify process.

The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2012-01-11/pdf/2012-143.pdf.

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6. DOS Launches 90-Day Pilot Program Allowing Online Passport Card Applications

On January 24, 2012, the Department of State’s Office of Passport Services launched a 90-day pilot program allowing adult U.S. citizens living in the United States and Canada to apply for a passport card online. Those applying online are not required to mail in their current passport book. The wallet-sized U.S. passport card costs $30 for current passport book holders, and is valid for land and sea travel to and from Canada, Mexico, the Caribbean, and Bermuda. It is not valid for international air travel.

To participate in the program, applicants must currently possess a valid 10-year U.S. passport book with at least 12 months of validity remaining, upload an acceptable digital photograph, and make an online payment in U.S. dollars via Pay.gov. Applications accepted through the program will be subject to the same adjudication standards as in-person or mail-in applications.

The Department of State began producing the passport card in 2008 in response to travel document requirements imposed by the Western Hemisphere Travel Initiative. Since then, more than 4.5 million cards have been issued.

The notice is available at http://www.state.gov/r/pa/prs/ps/2012/01/182345.htm. To apply for the passport card using the online application, go to http://travel.state.gov/passport/ppt_card/ppt_card_5648.html.

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7. AAO Denies RC Application to Build Resort Suites

U.S. Citizenship and Immigration Services (USCIS) recently published an Administrative Appeals Office (AAO) decision affirming denial of a proposal for a regional center designation. The AAO found that the applicant’s proposal was a “marketing strategy to attract buyers for vacation suites rather than investors of capital in a new commercial enterprise.”

Specifically, the AAO said that the evidence incontrovertibly established that the applicant proposed that “investors” would purchase a vacation suite as either a “primary residence,” “second home,” or “investment property.” The AAO affirmed the California Service Center director’s determination that such a real estate purchase of a private residence, even if still under construction, “is not an at-risk investment of capital that can be credited with direct or indirect job creation.” The purchase of individual residential suites by alien “investors,” even if concentrated in one resort complex, is also not the type of “pooled investment” concept Congress envisioned for the regional center program, the AAO noted. In summary, the AAO said:

[T]he applicant has proposed an investment plan whereby alien investors would make independent, passive, personal real estate investments that garner them no equity ownership in a new commercial enterprise. Instead of presenting a plan for a pooled equity investment of capital into a new commercial enterprise, the applicant has merely put forth a marketing strategy to attract sufficient buyers to fund later phases of development. This plan does not meet the letter or spirit of [the law and regulations] designed to encourage pooled investments in a new commercial enterprise benefitting a geographic region.

The April 26, 2011, decision is available at http://www.uscis.gov/err/K1%20-%20Request%20for%20Participation%20as%20Regional%20Center/Decisions_Issued_in_2011/Apr262011_01K1610.pdf

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8. New Publications and Items of Interest

USCIS Ombudsman teleconference on L-1B “specialized knowledge” worker petitions. This teleconference on February 7, 2012, from 2 to 3 p.m. EST, presents an opportunity to learn about the experiences of employers filing L-1B nonimmigrant petitions with USCIS. The L-1B classification allows an employer to petition for an employee who has “specialized knowledge” of the employer’s products, services, research, equipment, techniques, management, or other interests and its application in international markets, or expertise in the employer’s processes and procedures, from a qualified affiliated entity outside the United States. The Ombudsman’s Office says it would like to hear about employers’ experiences with USCIS adjudications of “specialized knowledge” filings. Participants are encouraged to join this discussion by anonymously sharing their experiences during the teleconference. To register, RSVP to cisombudsman.publicaffairs@dhs.gov and reference “L-1B Telecon” in the subject line of your e-mail. Participation in these teleconferences is anonymous. Comments, questions, materials, or suggestions regarding this topic should be directed via email to the Ombudsman’s Office at cisombudsman.publicaffairs@dhs.gov. The notice, along with links to “recaps” from recent teleconferences, is available at http://www.dhs.gov/files/programs/gc_1171038701035.shtm.

CRS reports: numerical limits on employment-based immigration, temporary protected status, free trade agreements, globalization and worker insecurity, Visa Waiver Program. The Congressional Research Service has released several new reports:

• “Numerical Limits on Employment-Based Immigration: Analysis of the Per-Country Ceilings” notes that the overwhelming number of approved employment-based legal permanent resident (LPR) visas pending at the National Visa Center at the close of FY 2010 were those of professional and skilled workers—102,395. There were also 16,788 approved visas pending for unskilled workers. Another 6,738 visas were pending for those with advanced degrees. There were also 2,961 approved visas pending in the “extraordinary” category. Most of the approved I-485 petitions pending are for professional, skilled, and unskilled workers (114,442). There were 7,545 approved I-485 petitions pending in the “extraordinary” category and 45,573 approved I-485 petitions pending in the “advanced degree” category. The extent that these two sets of data overlap—and thus may be counting the same petitions twice—is not known, but substantial duplication is presumed to exist.

The report lists the top four countries in both the National Visa Center and USCIS data sets (in rank order): India, the Philippines, the Peoples’ Republic of China, and Mexico. The data analyses suggest that the vast number of Indians may be waiting to adjust status in the United States, while the vast number of Filipinos may be waiting to immigrate from abroad. Those with approved pending cases from China seem to be more evenly split among new arrivals and those seeking to adjust status.

Some argue that the per-country ceilings are arbitrary, the report notes, and that employability has nothing to do with country of birth. Others maintain that the statutory per-country ceilings restrain the dominance of high-demand countries and preserve the diversity of the immigrant flows.

Legislation (H.R. 3012) to revise the per-country ceilings on LPRs passed the House on November 29, 2011.

The report is available at http://www.fas.org/sgp/crs/homesec/R42048.pdf.

• “Temporary Protected Status: Current Immigration Policy and Issues” provides an overview of TPS and other forms of blanket relief. The report notes that the United States currently provides TPS or deferred enforced departure (DED) to over 300,000 foreign nationals from seven countries: El Salvador, Haiti, Honduras, Liberia, Nicaragua, Somalia, and Sudan. Liberians have had relief from removal for the longest period, first receiving TPS in March 1991 following the outbreak of civil war. The report is available at http://fpc.state.gov/c41253.htm.

•  “Free Trade Agreements: Impact on U.S. Trade and Implications for U.S. Trade Policy” says that free trade agreements (FTAs) raise important policy issues: Do FTAs serve or impede U.S. long-term national interests and trade policy objectives? Which type of an FTA arrangement meets U.S. national interests? What should U.S. criteria be in choosing FTA partners? Are FTAs a substitute for or a complement to U.S. commitments and interests in promoting a multilateral trading system via the World Trade Organization (WTO)? What effect will the expiration of the Trade Promotion Authority have on the future of FTAs as a trade policy strategy? The report discusses pending and possible proposals for U.S. FTAs, relevant legislation, and other congressional interest in U.S. FTAs. The report is available at http://fpc.state.gov/documents/organization/179550.pdf.
• “Globalization, Worker Insecurity, and Policy Approaches” notes that globalization facilitated by the information technology revolution expands international trade in a wider range of services, but also subjects an increasing number of U.S. “white-collar” jobs to outsourcing and international competition. The current wave of globalization is supported by three broad trends, the report states: (1) technology, which has sharply reduced the cost of communication and transportation that previously divided markets; (2) a dramatic increase in the world supply of labor engaged in international trade; and (3) government policies that have reduced barriers to trade and investment. Recent research examines whether these trends are creating new vulnerabilities for workers. Because the relationship between globalization and worker insecurity is complicated and uncertain, a number of different approaches may be considered if the goal is to bolster public support for U.S. trade policies, globalization, and an open world economy, the report notes. Policies involving adjustment assistance, education, tax, and trade are most commonly proposed. The report points out the view of many economists that policies that inhibit the dynamism of labor and capital markets or erect barriers to international trade and investment would not be helpful because technology and trade are critical sources of overall economic growth and increases in the U.S. living standard. The report is available at http://fpc.state.gov/documents/organization/180691.pdf.
• “Visa Waiver Program” provides an overview of the requirements for eligibility and the history and current state of the Visa Waiver Program (VWP). The report also explains why several countries have been removed from the list of VWP countries, including Argentina and Uruguay, or placed on provisional (probationary) status, such as Belgium (which was placed on provisional status in 2003 but restored in 2005). The report is available at http://www.fas.org/sgp/crs/homesec/RL32221.pdf.

DOJ webinars on employment verification. The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices has announced upcoming monthly webinars on employment verification issues. Workers and worker advocates may join the monthly worker/advocate track webinar, and employers/HR professionals may join the monthly employer track webinar. The employer/HR webinars are scheduled for February 22, March 21, and April 30, 2012. The worker/advocate webinars are scheduled for February 9, March 13, and April 17, 2012. For more information or to register, see http://www.justice.gov/crt/about/osc/webinars.php.

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 http://www.greencardstories.com/.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available at http://www.abilblog.com/.

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9. Member News

Cyrus Mehta has published several new blog entries. “Drugs and Inadmissibility” is available at http://blog.cyrusmehta.com/2012/01/drugs-and-inadmissibility.html. “State Department’s Visa Office Takes Broader View of ‘Sought to Acquire’ Provision Under the Child Status Protection Act” is available at http://blog.cyrusmehta.com/2012/01/state-departments-visa-office-takes.html. “Edge Says Indian 2-Year Master’s Degree Following 4-Year Bachelor’s Is Not Equivalent to U.S. Master’s Degree” is available at http://blog.cyrusmehta.com/2012/01/edge-says-indian-4-year-bachelors.html.

Angelo Paparelli has published several new blog entries. “I Hate [Bleep]ing Immigration Law” – Whenever I Get an Unjust Request for Evidence” is available at http://www.nationofimmigrators.com/uscis/i-hate-bleeping-immigration-law—-whenever-i-get-an-unjust-request-for-evidence/. “Powdered Wig Immigration With the Lawyer as Potted Plant” is available at http://www.nationofimmigrators.com/2012/01/. “The DHS Inspector General Report on Fraud Detection at USCIS: Pious Immigration Baloney” is available at http://www.nationofimmigrators.com/2012/01/.

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10. Government Agency Links

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

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. ETA Announces 2012 Adverse Effect Wage Rates for H-2A Workers – The AEWRs range from a low of $9.30 per hour in Mississippi and Louisiana to a high of $12.26 per hour in Hawaii.

2. USCIS Changes Stand-Alone I-130 Filing Locations – USCIS has changed the filing locations for Form I-130, Petition for Alien Relative.

3. California Steel Foundry Fires a Third of Its Workers After I-9 Audit – The audit had identified about 200 employees allegedly working without legal status.

4. Justice Dept. Accuses Arizona Sheriff of Civil Rights Violations; Federal Judge Issues Ruling – A Civil Rights Division investigation found that the Maricopa County Sheriff’s Office engages in racial profiling of Latinos and unlawfully retaliates against individuals who criticize MCSO’s policies or practices; and a federal judge ruled that MCSO’s deputies may not detain people based solely on the suspicion that they may be in the U.S. illegally.

5. USCIS Ombudsman Now Requires Form DHS 7001 for EAD Cases – Those who have already submitted an EAD case inquiry do not need to submit the DHS 7001, but the form must be completed for all future inquiries.

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

7. Member News – Member News

8. Government Agency Links – Government Agency Links

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Details:

1. ETA Announces 2012 Adverse Effect Wage Rates for H-2A Workers

On December 22, 2011, the Department of Labor’s Employment and Training Administration (ETA) announced the 2012 adverse effect wage rates (AEWRs) for the employment of temporary or seasonal nonimmigrant foreign workers to perform agricultural labor or services (H–2A workers). AEWRs are the minimum wage rates employers must offer and pay to H–2A workers and workers in corresponding employment for a particular occupation and area so that the wages of similarly employed U.S. workers will not be adversely affected. The Department’s H–2A regulations provide that employers must pay their H–2A workers and workers in corresponding employment at least the highest of: (i) the AEWR; (ii) the prevailing wage; (iii) the prevailing piece rate; (iv) the agreed-upon collective bargaining wage, if applicable; or (v) the federal or state minimum wage in effect at the time the work is performed.

The AEWRs range from a low of $9.30 per hour in Mississippi and Louisiana to a high of $12.26 per hour in Hawaii.

The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-12-22/pdf/2011-32842.pdf.

 

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2. USCIS Changes Stand-Alone I-130 Filing Locations

U.S. Citizenship and Immigration Services (USCIS) announced that effective January 1, 2012, it has changed the filing locations for Form I-130, Petition for Alien Relative. Domestic petitioners should mail their stand-alone I-130 applications to either the Chicago Lockbox or the Phoenix Lockbox, depending on where they reside in the United States.

There will be no change in filing locations when submitting an I-130 along with Form I-485, Application to Register Permanent Residence or Adjust Status. Individuals filing these forms together should continue to mail them to the Chicago Lockbox facility. Petitioners filing from overseas addresses in countries without USCIS offices should also continue to file at the Chicago Lockbox facility. Petitioners residing in a country with a USCIS office may send their I-130s to the Chicago Lockbox, or may file their I-130s at the international USCIS office having jurisdiction over the area where they live.

Those who submit their I-130 packages to the incorrect Lockbox location may experience a delay in processing. The new filing locations are available on the Form I-130 Direct Filing Locations webpage at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=6583ecb23683a210VgnVCM100000082ca60aRCRD&vgnextchannel=fe529c7755cb9010VgnVCM10000045f3d6a1RCRD.

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3. California Steel Foundry Fires a Third of Its Workers After I-9 Audit

Pacific Steel Casting Company, based in Berkeley, California, has fired about a third of its workers after U.S. Immigration and Customs Enforcement (ICE) conducted an I-9 work authorization audit in February 2011 and identified about 200 employees allegedly working without legal status.

Elisabeth Jewel, a Pacific Steel spokesperson, said, “It’s terribly disruptive. We have highly trained employees and to lose them is very damaging.” In some cases, the workers had been with the company for decades and have children in local schools who are growing up in the United States.

The Berkeley City Council passed a resolution in June noting that the targeted workers are skilled and “inject hundreds of thousands of dollars into our local economy each month and support other businesses and families. The company and the workers pay taxes that support local schools and services.” The council noted that Pacific Steel’s suppliers could also be harmed by the action, and that the audit and consequent firing of the workers will force them “into an underground economy where illegal wages and conditions are prevalent.” Pacific Steel is the fourth largest foundry in the United States.

In a related action, the American Civil Liberties Union and several unions filed a Freedom of Information Act (FOIA) request in September 2011 seeking records relating to I-9 audits and “silent raids” such as the one ICE conducted on Pacific Steel. An ICE spokesperson reportedly said that in fiscal year 2011, ICE criminally charged 221 owners, employers, managers, or supervisors; conducted more than 2,496 I-9 audits; and initiated 3,291 worksite enforcement investigations, all up from 2010 numbers.

The Berkeley City Council resolution is available at http://www.ci.berkeley.ca.us/uploadedFiles/Clerk/Level_3_-_City_Council/2011/06Jun/2011-06-28_Item_41_Urging_the_U.S._Department_of_Homeland_Security.pdf. The FOIA request is available at http://www.aclunc.org/news/press_releases/asset_upload_file731_10448.pdf.

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4. Justice Dept. Accuses Arizona Sheriff of Civil Rights Violations; Federal Judge Issues Ruling

Thomas E. Perez, U.S. Assistant Attorney General, sent a letter on December 15, 2011, to the Maricopa County Attorney, Bill Montgomery, accusing the Maricopa County Sheriff’s Office (MCSO) in Arizona of engaging in a “pattern or practice of unconstitutional policing.”

Meanwhile, a federal judge ruled on December 23, 2011, that Maricopa County’s deputies may not detain people based solely on the suspicion that they may be in the United States illegally. U.S. District Judge Murray Snow noted, among other things, that Sheriff Arpaio “has made public statements that a fact-finder could interpret as endorsing racial profiling.” A separate federal grand jury investigation of the MCSO related to criminal abuse of power continues.

Mr. Perez’s letter notes that a Civil Rights Division investigation found that MCSO engages in racial profiling of Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates against individuals who complain about or criticize MCSO’s policies or practices. MCSO’s “deputies, supervisory staff, and command staff” perpetrated the alleged violations.

The Civil Rights Division also found reasonable cause to believe that MCSO operates its jails in a manner that discriminates against limited English proficient (LEP) Latino inmates, who it said are punished “routinely” for failing to understand commands given in English and are denied critical services provided to other inmates.

The investigation uncovered a number of instances in which MCSO initiated immigration-related crime suppression activities in the community after receiving complaints that described no criminal activity, but rather referred to circumstances such as individuals with “dark skin” congregating in one area, or individuals speaking Spanish at a local business. “The use of these types of bias-infected indicators as a basis for conducting enforcement activity contributes to the high number of stops and detentions lacking in legal justification,” Mr. Perez said.

Mr. Perez noted that the bias affects MCSO from the top down. Maricopa County Sheriff Arpaio, for example, labeled as “intelligence” a letter explicitly equating skin color with law-breaking and instructed a subordinate to address it. Such instances “are striking examples of how Sheriff Arpaio has promoted a culture of bias in his organization and clearly communicated to his officers that biased policing would not only be tolerated, but encouraged.”

The Civil Rights Division also found that MCSO deputies are encouraged to make high-volume pretextual traffic stops in targeted locations. “We have identified and interviewed Latinos who, though legally present in the United States, were arrested or detained without cause as a consequence of these operations.” Further, MCSO’s Criminal Employment Squad (CES) deputies, tasked with interdicting undocumented persons by enforcing state forgery and identity theft statutes, “routinely raid businesses in a manner that harms innocent Latino workers. Specifically, CES’s deputies typically detain and investigate the immigration status of all employees at a raided worksite, whether or not the employees are listed in the warrant authorizing the raid. The CES targets worksites where most, if not all, of the employees are Latino,” the letter states.

MCSO officials also have resorted to official harassment to silence critics, the letter says. For example, former Chief Deputy David Hendershott filed “unfounded complaints” with the Arizona State Bar against five attorneys, alleging ethical violations. The attorneys had publicly criticized MCSO’s tactics. Similarly, Mr. Hendershott, acting in his official capacity, filed complaints with the Arizona Commission on Judicial Conduct against judges who had publicly criticized MCSO and Sheriff Arpaio or had rendered decisions deemed detrimental to MCSO’s interests. All of the bar and judicial complaints were dismissed as insufficient to warrant an investigation, the letter notes, adding that Sheriff Arpaio participated as a named plaintiff in a civil federal racketeering suit filed against the same targeted judges and a number of other county officials. The claims against the judges echoed the complaints Hendershott had filed; the suit eventually was abandoned. “The arrests and harassment undertaken by MCSO have been authorized at the highest levels of the agency and constitute a pattern of retaliatory actions intended to silence MCSO’s critics,” Mr. Perez noted.

These violations, along with the absence of clear policies and procedures to ensure effective and constitutional policing and oversight, “have contributed to a chronic culture of disregard for basic legal and constitutional obligations,” Mr. Perez said, adding that the Civil Rights Division found “additional areas of serious concern,” including MCSO deputies using excessive force against Latinos, and MCSO’s implementing its immigration enforcement program in a way that has created a “wall of distrust” between MCSO officers and Maricopa County’s Latino residents, and that “has significantly compromised MCSO’s ability to provide police protection” to residents.

Mr. Perez told Maricopa County that effective resolution of these issues will require a comprehensive written agreement along with federal judicial oversight. “We prefer to resolve this matter without resort to further litigation, although we will not hesitate to file suit, if necessary,” the letter states, setting a deadline of January 4, 2012, for a response to an invitation for “constructive dialogue.” Mr. Perez noted that the Civil Rights Division’s investigation was delayed when MCSO “repeatedly refused to provide the United States with access to pertinent material and personnel,” which was resolved by means of a lawsuit.

MCSO released Sheriff Arpaio’s response implying that political motivations of the Obama administration and Congressional Democrats are behind the actions and noting, among other things, that “2 Democrat Latino US Congress men from Arizona, joined by several other Latino Legislatures want me to resign my office. All of these same Democratic elected officials, throughout the years, have been criticizing my enforcement of State and Federal Illegal immigration laws.” Conversely, Sheriff Arpaio noted, “Candidates for President of the United States – Herman Cain and Michelle Bachmann recently visited me in my office, Texas Governor Rick Perry and Mitt Romney also called me – all interested in my successful enforcement of illegal immigration and asked for my endorsement. Recently in New Hampshire, I endorsed Texas Governor Rick Perry for President of the United States.” (Typographical errors in original.)
Mr. Perez’s letter includes a description of the findings, a legal discussion, and remedial measures required, such as training for deputies; establishment of policies and procedures; data collection and risk management; developing and implementing a complaint, investigation, and disciplinary system; a comprehensive language access program for LEP individuals in jail and in the community; and community outreach. The letter is available at http://www.justice.gov/crt/about/spl/documents/mcso_findletter_12-15-11.pdf. Sheriff Arpaio’s response is available at http://www.mcso.org/MultiMedia/PressRelease/DOJ%20presser%20response%20121511.pdf.

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5. USCIS Ombudsman Now Requires Form DHS 7001 for EAD Cases

U.S. Citizenship and Immigration Services’ Ombudsman’s Office requests that those submitting case inquiries complete Form DHS 7001, Case Problem Submission Worksheet, for all cases, including those related to applications for an employment authorization document (EAD). The Ombudsman is requiring completion of the DHS 7001 to comply with applicable privacy rules. In the past, the Ombudsman allowed case inquiries without the DHS 7001 regarding EAD applications falling outside normal processing times. For same-day submission in urgent cases, the Ombudsman encourages people to use Ombudsman Online Case Assistance when submitting inquiries. Those who have already submitted an EAD case inquiry do not need to submit the DHS 7001, but must complete the form for all future inquiries.

The DHS 7001 is available at http://www.dhs.gov/xlibrary/assets/cisomb_dhsform7001.pdf or may be completed online at https://cisombvos.dhs.gov/vos/form7001.aspx (Ombudsman Online Case Assistance).

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6. New Publications and Items of Interest

OIG report on New Delhi embassy. The Department of State’s Office of Inspector General has published a report on the embassy in New Delhi, India, and constituent posts. Among the recommendations are several for ensuring uniform adjudications of H visa applications and revocation of H petitions. The report notes that because of the rapidly expanding bilateral relationship between the United States and India, and the growing Indian economy, the nonimmigrant visa workload could double by 2020. The OIG recommends that stakeholders in the Department of State initiate long-range workload planning and a long-term strategic plan for facilities in India, including the possibility of more posts. The report is available at http://oig.state.gov/documents/organization/169305.pdf.

ABIL Global Comparative Investment & Immigration Options Webinar. The Alliance of Business Immigration Lawyers (ABIL) will present a webinar, “ABIL Global Comparative Investment & Immigration Options,” on January 12, 2012, at 12 a.m. EST/5 a.m. GMT. This webinar will help guide investors and entrepreneurs who are looking for options in various countries. ABIL will cover the immigration options through investment in Australia, Canada, the United Kingdom, and the United States. All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before the webinar, as well as a recording of the webinar afterwards. The cost is $50 to participate live or to receive the recorded version of the webinar. Register at https://securec9.ezhostingserver.com/abil-com/abil_global_comparative_webinar_signup.cfm. For more information, contact Lauren Anderson at lauren@abil.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 http://www.greencardstories.com/.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration.

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7. Member News

Charles Kuck wrote an op-ed that was published in the December 28, 2011, edition of the Atlanta Journal Constitution. “Path to Legality Falls Way Short” is available at http://www.ajc.com/opinion/path-to-legality-falls-1278722.html.

Cyrus Mehta has published a new blog entry. “It’s 9:00 A.M. – Do You Know Where Your H-1B Employee Is? An Overview of FDNS Site Visits” is available at http://cyrusmehta.blogspot.com/2011/12/its-9oo-am-do-you-know-where-your-h-1b.html.

Angelo Paparelli has published several new blog entries. “The 2011 Nation of Immigrators Awards – the IMMIs” was published at http://t.co/h43UjSyI. “The Immigration Appeaser-in-Chief Should Try Some New Ammunition” is available at http://bit.ly/tfjcvH. “Immigration Governance Unmasked” is available at http://bit.ly/tvSylM.

Mr. Paparelli was recently quoted in the Los Angeles Times and in an Associated Press video about his client, an ex-slave from Egypt and now a U.S. citizen, Shyima Hall. The article is available at http://www.latimes.com/news/local/la-me-1216-shyima-hall-20111216,0,1583100.story and the video is available via Huffington Post at http://www.huffingtonpost.com/2011/12/15/shymia-hall-citizen_n_1151877.html?.

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8. Government Agency Links

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. H-1B Cap Reached for FY 2012 – Petitions for new employment of an H-1B will not be accepted again until April 1, 2012.

2. House Votes To End Per-Country Limits on Employment-Based Immigration Visas – The measure could benefit skilled Indian and Chinese workers and high-tech companies in the United States.

3. Labor Dept. Current on PERM, H-1B Prevailing Wage Determinations – In the PERM and H-1B programs, the Labor Department considers a prevailing wage determination “current” if it is issued within 60 days of submission.

4. Justice Dept. Sues Utah Over Immigration Law – DOJ argued that Utah’s law is unconstitutional and mandates immigration enforcement measures that interfere with the immigration priorities and practices of the federal government.

5. State Dept. Seeks Comments on New Exchange Visitor Summer Work Travel Verification Form – The form will be completed by designated program sponsors, and one is required for each summer work travel participant.

6. State Dept. Announces Progress on ‘Historic’ Visa Agreement With Russia – The visa agreement has advanced one step closer to entry into force.

7. Student and Exchange Visitor Update: F, M, J Visa Processing Resumes Worldwide; Expedited Processing, Record Numbers of Students Announced – International students attending U.S. colleges and universities rose to a record number in the 2010-2011 academic year.

8. Labor Dept. Inspector General Identifies ‘Integrity of Foreign Labor Certification Programs’ as a Top Management Challenge – The OIG said that investigations “continue to uncover schemes carried out by immigration attorneys, labor brokers, and transnational organized crime groups.”

9. OSC Releases Info on Enforcement, Policy, Trends; Launches Webinar – OSC said its enforcement work has been bolstered by a rise in referrals of potential discrimination from entities such as the Department of Labor, legal aid bureaus, and immigrant advocacy organizations.

10. USCIS Reminds Haitians That They May File Late for TPS – USCIS reminded eligible Haitians (and persons without nationality who last habitually resided in Haiti) who have not filed their TPS applications to follow guidance about late filing.

11. ABIL Global: Clarification in Scope of Some Peruvian Immigration Rules – Changes do not occur often in Peruvian immigration law. Recently, however, a few notable changes took place.

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. H-1B Cap Reached for FY 2012

U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory numerical limit (cap) of 65,000 for fiscal year (FY) 2012. November 22, 2011, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2012. Properly filed cases are considered received on the date that USCIS physically receives the petition, not the date that the petition was postmarked.

As of October 19, 2011, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. In addition, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the FY 2012 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the U.S.;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; and
• allow current H-1B workers to work concurrently in a second H-1B position.

Petitions for “new employment” of an H-1B, that is, for employment of a person who is not yet in H-1B status for another employer, will not be accepted again until April 1, 2012. Those petitions received after April 1, 2012, must request employment starting October 1, 2012, so that they will be subject to next year’s cap (FY 2013).

Global employers now affected by the U.S. cap may want to consider hiring potential H-1B employees to work in other countries. Contact your Alliance of Business Immigration Lawyers attorney for guidance in specific cases.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f0a78614e90d3310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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2. House Votes To End Per-Country Limits on Employment-Based Immigration Visas

On November 29, 2011, the U.S. House of Representatives voted 389-15 in favor of ending per-country numerical limits (caps) on employment-based visas. The bill does not raise the number of such visas issued, but would eliminate the current provision stating that employment-based visas issued cannot exceed seven percent of the total for any one country. The measure could benefit skilled Indian and Chinese workers and high-tech companies in the United States.

Similar legislation is pending in the Senate. For the text of the bill, H.R. 3012, see http://www.gpo.gov/fdsys/pkg/BILLS-112hr3012rh/pdf/BILLS-112hr3012rh.pdf.

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3. Labor Dept. Current on PERM, H-1B Prevailing Wage Determinations

The Department of Labor’s Office of Foreign Labor Certification recently announced that PERM and H-1B prevailing wage determinations are now current. H-2B prevailing wage determinations are expected to become current imminently.

The Department explained that “current” has a different meaning depending on the program. In the PERM and H-1B programs, a prevailing wage determination is considered current when it is issued within 60 days of submission. For H-2B prevailing wage determinations, “current” is within 30 days of submission. The PERM program became current the week of October 23, 2011, and the H-1B program became current the week of November 6, 2011. The Department noted that the dates may be subject to change based on unanticipated actions, such as any additional judicial determinations or legislative actions. The agency added that appeals are being processed as resources allow, with priority placed on becoming current on initial prevailing wage determination requests.

The notice is available under “November 17, 2011,” at http://www.foreignlaborcert.doleta.gov/news.cfm.

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4. Justice Dept. Sues Utah Over Immigration Law

On November 22, 2011, the Department of Justice and several other agencies filed suit against Utah’s new immigration-related law, after similar recent lawsuits against Arizona, Alabama, and South Carolina’s laws.

In a complaint filed in the District of Utah, the Department argued that several provisions of Utah’s H.B. 497, enacted on March 15, 2011, are preempted by federal law. The Department said its lawsuit comes after several months of “constructive discussions” with Utah state officials and that, notwithstanding the lawsuit, Department officials “expect this important dialogue to continue.”

The complaint states that H.B. 497 violates the U.S. Constitution because it attempts to establish state-specific immigration policy. According to a related statement released by the Department, Utah’s law “creates and mandates immigration enforcement measures that interfere with the immigration priorities and practices of the federal government in a way which is not cooperative with the primary federal role in this area.” Among other things, the Department argues that the law’s mandates on law enforcement “could lead to harassment and detention of foreign visitors and legal immigrants who are in the process of having their immigration status reviewed in federal proceedings and whom the federal government has permitted to stay in this country while such proceedings are pending.”

“A patchwork of immigration laws is not the answer and will only create further problems in our immigration system,” said Attorney General Eric Holder. “The federal government is the chief enforcer of immigration laws and while we appreciate cooperation from states, which remains important, it is clearly unconstitutional for a state to set its own immigration policy. We will continue to monitor and coordinate with our federal partners as we remain concerned about the potential impact of these state laws.”

Department of Homeland Security Secretary Janet Napolitano said legislation such as Utah’s new law “diverts critical law enforcement resources from the most serious threats to public safety and undermines the vital trust between local jurisdictions and the communities they serve. The Department will continue to enforce federal immigration laws in Utah in smart, effective ways that focus our resources on criminal aliens, recent border crossers, repeat and egregious immigration law violators and employers who knowingly hire illegal labor.”

The Department recently notified Utah state officials of its position that Utah’s “Immigrant Guest Worker” statutes, H.B. 116 and H.B. 469, are preempted by federal law. Given that the provisions do not take effect until 2013, and “in light of the constructive conversations the department continues to have with Utah officials about these provisions pursuant to the Justice Department’s long-standing policy of exploring resolution short of litigation before filing suit against a state,” the Department said it is not challenging these provisions now. If Utah fails to comply with federal law in this area, however, “the department will not hesitate to take the legal action necessary to vindicate the important federal interests in this matter before these laws go into effect.”

The suit was filed on behalf of the Departments of Justice, Homeland Security, and State, which share responsibilities in administering federal immigration law. The federal government will soon request a preliminary injunction to enjoin enforcement of certain provisions of H.B. 497. Utah’s Republican state Rep. Stephen Sandstrom, who sponsored H.B. 497, said he was disappointed, but Utah’s Attorney General Mark Shurtleff acknowledged that the focus only on an enforcement measure rather than also including the guest worker provisions in the suit demonstrated the Department’s willingness to continue dialogue. “We’re now adversaries in the courtroom but we’re going to continue to discuss this with them,” he said.

Mexico’s Foreign Relations Department released a statement welcoming the news of the suit. “The HB 497 law criminalizes migration and opens the door to possible improper application of the law by local authorities. If it takes effect, it could affect the human and civil rights of Mexicans who visit or live in that state,” the statement said.

The Justice Department previously challenged Arizona’s S.B. 1070, Alabama’s H.B. 56, and South Carolina’s Act No. 69 on federal preemption grounds. The agency said it continues to review immigration-related laws that were passed in Indiana and Georgia. Courts have upheld some provisions but enjoined others and have temporarily restrained enforcement of Utah’s law pending a hearing scheduled for December 2, 2011.

The Department’s statement is available at http://www.justice.gov/opa/pr/2011/November/11-ag-1526.html.

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5. State Dept. Seeks Comments on New Exchange Visitor Summer Work Travel Verification Form

The Department of State’s Bureau of Educational and Cultural Affairs, which administers the exchange visitor (J visa) program, seeks comments on a new Summer Work Travel Job Placement Verification Form.

The form will be completed by designated program sponsors, and one is required for each summer work travel participant. It will include the employer, address of the employment site, job duties, whether the participant will receive any remuneration for housing and living expenses (and, if so, the amount), and estimates of the living expenses and other costs the participants are likely to incur while in the United States. The form must be signed by the participant, the sponsor, and the third party employer, if a third party organization is used in conducting the summer work travel program. The form will be submitted to the Department by mail or fax as requested during the review of program sponsor files, redesignations, or incidents. Upon request, summer work travel applicants also must present a fully executed Job Placement Verification Form (DS-7007) to any consular official interviewing them in connection with the issuance of a J-1 visa.

The Department seeks public comments to help the agency:

• evaluate whether the proposed information collection is necessary for the effective administration of the summer work travel category of the exchange visitor program;
• evaluate the accuracy of its estimate of the burden of the proposed collection, including the validity of the methodology and assumptions used;
• enhance the quality, utility, and clarity of the information to be collected on the form; and
• minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of technology.

The Department estimates that approximately 51 respondents (entities designated by the Department as exchange visitor program sponsors in the Summer Work Travel category, and U.S. businesses that provide the employment opportunity) will take about an hour each to complete the form.

Comments will be accepted up to 60 days after November 28, 2011. The notice, which includes details about where to submit comments, is available at http://www.gpo.gov/fdsys/pkg/FR-2011-11-28/pdf/2011-30521.pdf.

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6. State Dept. Announces Progress on ‘Historic’ Visa Agreement With Russia

Secretary of State Clinton and Russian Foreign Minister Lavrov exchanged diplomatic notes during their November 19, 2011, meeting in Bali on the new agreement on visas announced on July 13, 2011. The exchange of notes advances the visa agreement one step closer to entry into force. Under Russian law, the Duma must next ratify the agreement. Following ratification, the parties will exchange a second set of notes confirming that their internal procedures for entry into force have been completed. The agreement will come into force 30 days after that exchange.

The Department called the visa agreement “historic.” It will allow tourists and business travelers from the United States and Russia to receive visas with longer validity periods of 36 months, and for multiple entries.

The announcement is available at http://www.state.gov/r/pa/prs/ps/2011/11/177398.htm.

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7. Student and Exchange Visitor Update: F, M, J Visa Processing Resumes Worldwide; Expedited Processing, Record Numbers of Students Announced

The Department of State recently identified difficulties with its Consolidated Consular Database (CCD) communications with the Student and Exchange Visitor Program’s (SEVP) Student and Exchange Visitor Information System. The Department discovered this issue on November 14, 2011, and subsequently instructed embassies and consulates worldwide to halt, temporarily, the issuance of all F, M and J visas. SEVP and the Department subsequently resolved the difficulties as of November 18, 2011, and the Department instructed embassies and consulate to resume issuing F, M, and J visas immediately.

Separately, the Department of State announced in conjunction with International Education Week on November 14, 2011, that “[a]ll U.S. embassies and consulates expedite visa processing for foreign students to ensure qualified students are able to begin their academic program on time.” Worldwide, the maximum wait for a student visa appointment is now fewer than 15 days, the Department said. Foreign students may apply for their visas up to 120 days before their academic programs begin. The Department encourages all visa applicants to apply early.

According to the Institute of International Education (IIE), international students attending U.S. colleges and universities rose to a record 723,277 in the 2010-2011 academic year. The five percent rise over the previous academic year was fueled by a sharp increase in the number of Chinese students coming to the United States. Chinese students increased by 23 percent altogether and by 43 percent at the undergraduate level. IIE reported that Chinese student enrollment rose to a total of nearly 158,000 students, or nearly 22 percent of the total international student population in the United States, making China the leading sending country for the second year in a row. Students from India, the second largest international cohort in the United States, decreased by one percent to a total of nearly 104,000, IIE said. IIE noted Department of Commerce statistics showing that international students contribute more than $21 billion to the U.S. economy through tuition and living expenditures.

For the tenth year in a row, the University of Southern California is the leading host institution, with 8,615 international students in academic year 2010/11, IIE reported. University of Illinois at Urbana-Champaign hosts the second highest number of foreign students (7,991), with New York University a close #3 (7,988). California remains the leading host state for international students (96,535, up 2 percent), followed by New York (78,888, up 4 percent), and Texas (61,636, up 5 percent).

The notice announcing resumption of F, M, and J issuances is available at http://www.nafsa.org/uploadedFiles/BM%20111-02%20combined.pdf. The notice announcing expedited student visa processing is available at http://www.state.gov/r/pa/prs/ps/2011/11/177132.htm. The notice announcing the IIE statistics and trends on international students is available at http://www.iie.org/en/Who-We-Are/News-and-Events/Press-Center/Press-Releases/2011/2011-11-14-Open-Doors-International-Students.

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8. Labor Dept. Inspector General Identifies ‘Integrity of Foreign Labor Certification Programs’ as a Top Management Challenge

The Department of Labor’s Office of the Inspector General (OIG) has identified maintaining the integrity of foreign labor certification programs among the “most serious management and performance challenges facing the Department.”

The OIG said that investigations “continue to uncover schemes carried out by immigration attorneys, labor brokers, and transnational organized crime groups.” OIG investigations have repeatedly revealed “fraudulent applications filed with DOL on behalf of fictitious companies, as well as schemes wherein fraudulent applications were filed using the names of legitimate companies without the companies’ knowledge.” Additionally, OIG investigations have uncovered complex schemes involving fraudulent labor certification documents filed in conjunction with or in support of similarly falsified identification documents required by other federal and state organizations, the OIG said.

The OIG noted that the Employment and Training Administration (ETA), which administers the programs, faces challenges in maintaining the integrity of its H?1B and H?2B labor certification programs. The H?1B challenges include statutory limits on the ETA’s authority, making system improvements in H?1B labor condition application processing system to better identify incomplete and/or inaccurate applications, and uncertainty about the process for including individuals or entities debarred under the Department’s labor certification programs on the government-wide excluded parties lists.

Present H?2B worker protections are based on a model where employers merely assert, but do not demonstrate, that they have performed an adequate test of the U.S. labor market before hiring foreign workers in lieu of U.S. workers, the OIG said. An OIG report issued in October 2011 found that Department regulations had hampered ETA’s ability to provide adequate protections for U.S. workers in the H?2B applications filed by four Oregon forestry employers. Although the employers contacted 187 U.S. workers regarding possible employment, none were hired. Instead, 323 foreign workers were brought into the United States for these jobs. The OIG also found that certain state workforce agencies did not fulfill their responsibilities with respect to H?2B applications the OIG reviewed.

The OIG also found that ETA could improve its initial application reviews, post?adjudication processes, and monitoring activities to better protect the interests of U.S. workers. Also, the OIG noted that the state workforce agencies it reviewed were not transmitting posted job orders to other states or referring U.S. workers to employers as required.

The OIG said that ETA’s Fraud Detection and Prevention Unit continues to work closely with the OIG to identify and reduce fraud in the labor certification process by reviewing applications for inconsistencies, errors, and omissions. ETA has revised the rule for determining prevailing wage rates and proposed new rules governing the H?2B process. The OIG noted the major features of the new proposed rules, including creating a national electronic job registry for all H?2B job orders; increasing the amount of time for which U.S. workers must be recruited; requiring employers to engage in post?filing recruitment of U.S. workers; creating an H?2B registration process in which employers must demonstrate temporary need before applying for labor certification; reinstating the critical role of the state workforce agencies in assisting employers by using their expertise on local labor market conditions and recruitment patterns; and strengthening debarment authorities by providing the Wage and Hour Division with independent debarment authorities and providing revocation authority to ETA.

To address the H?1B challenges, ETA has entered into a contract with a third?party vendor for employer verification services, the OIG noted. Through this service, ETA is expected to have access to a more comprehensive employer identification database and verification system. This service will be applied to all labor certifications, the OIG said.

In addition, ETA is working with the Department’s Chief Acquisition Officer on ways to include foreign labor certification suspensions and debarments on the government?wide excluded parties list.

Finally, ETA is piloting a new risk management model in its permanent labor certification program (PERM). According to ETA, this new risk management model allows ETA to assign risk ratings to applicants and spend an appropriate amount of time reviewing the higher-risk applications, reducing overall reviewing time frames. ETA officials also told the OIG that the new model will eventually be applied to the rest of the foreign labor certification programs.

The OIG said the Department needs to reexamine its certification processes and results to assess effectiveness. Also, the Department needs to enhance its monitoring of the H?2B application process to ensure that state workforce agencies and employers are fully complying with program requirements and intentions and make adjustments to enhance the integrity of its employer verification services by fully implementing electronic employer verification controls to the H?1B program and the remaining foreign labor certification programs. The OIG said that the Department should ensure that it considers suspensions and debarments, and documents decisions, for any entity convicted of violations. It also should ensure that such debarments are reported to appropriate Department personnel for inclusion in the government?wide exclusion system.

The OIG’s list of challenges, which includes explanations of why each entry made the list, is available at http://www.oig.dol.gov/public/topchallenges/2011.pdf.

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9. OSC Releases Info on Enforcement, Policy, Trends; Launches Webinar

November 6, 2011, marked the 25th anniversary of the passage of the Immigration Reform and Control Act, which created the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC). To mark the occasion, OSC issued a commemorative newsletter featuring OSC’s enforcement, policy, and outreach trends and antidiscrimination efforts. Among other things, the newsletter notes that in 2011, OSC collected over $735,000 in civil penalties from employers. Fiscal year 2011 included OSC’s largest civil penalty amount to date, $290,400.

OSC said its enforcement work has been bolstered by a rise in referrals of potential discrimination from entities such as the U.S. Department of Labor (DOL), legal aid bureaus, and immigrant advocacy organizations. For example, OSC has received a number of referrals from DOL regarding agricultural employers believed to have a preference for hiring H-2A visa holders over domestic workers. Recently, OSC has renewed its dialogue with the Equal Employment Opportunity Commission and with DOL’s Office of Federal Contract Compliance Programs to ensure that appropriate referrals are made in a timely fashion. It has also initiated discussions with DOL’s Wage and Hour Division to identify appropriate cross-agency referrals.

OSC noted that its settlement agreements now routinely include back pay for identified economic victims along with training and monitoring. OSC has also pursued a rising number of pattern or practice claims, including claims involving citizenship status discrimination and “document abuse” (discriminatory employment eligibility verification practices). OSC’s recent settlements have involved the healthcare field and institutions of higher education more often than in the past.

Recognizing the need for closer interagency collaboration, on March 17, 2010, OSC and U.S. Citizenship and Immigration Services signed a Memorandum of Agreement providing for enhanced information-sharing and case referrals regarding the misuse, abuse, or fraudulent use of E-Verify and allegations of E-Verify-related employment discrimination. Through this information-sharing agreement, OSC has obtained E-Verify transactional data to investigate allegations of discrimination in the use of E-Verify.

In December, OSC will launch a webinar series on the antidiscrimination provisions of the Immigration and Nationality Act. See OSC’s webinar page, http://www.justice.gov/crt/about/osc/webinars.php, to sign up for a webinar directed at workers or employers, or to suggest a topic for a future webinar. E-mail terence.j.scott@usdoj.gov to arrange a webinar at another time for your organization.

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10. USCIS Reminds Haitians That They May File Late for TPS

U.S. Citizenship and Immigration Services (USCIS) recently reminded eligible nationals of Haiti (and persons without nationality who last habitually resided in Haiti) who have not filed their temporary protected status (TPS) applications to follow guidance about late filing.

Haiti was originally designated for TPS in January 2010 in response to a catastrophic earthquake, and was re-designated in May 2011. The registration period for individuals filing for TPS for the first time ended on November 15, 2011. The re-registration filing period for individuals previously granted TPS ended on August 22, 2011.

The instructions for filing a TPS application and filing late are at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=848f7f2ef0745210VgnVCM100000082ca60aRCRD&vgnextchannel=848f7f2ef0745210VgnVCM100000082ca60aRCRD#Filing%20Late.

For more information about Haitian TPS, including registration application requirements, fees, and procedures, see http://www.gpo.gov/fdsys/pkg/FR-2011-05-19/html/2011-12440.htm and USCIS’s “TPS Haiti” page at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=e54e60f64f336210VgnVCM100000082ca60aRCRD&vgnextchannel=e54e60f64f336210VgnVCM100000082ca60aRCRD.

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11. ABIL Global: Clarification in Scope of Some Peruvian Immigration Rules

Changes do not occur often in Peruvian immigration law. Recently, however, a few notable changes took place.

One change concerns the modification of articles 358 to 378 of the Peruvian Consular Rules that was approved by Supreme Decree No. 091-2011-RE at the end of July 2011, in coordination with amendments to the Peruvian Aliens Law passed in June 2008. The amendments established that within the powers the Aliens Law grants to the Ministry of Foreign Relations, regardless of the migration status and the type of visa that may be granted by a consular officer abroad, is the responsibility and ultimate power of the consular officers to grant or deny visas to be stamped in passports or foreign travel documents, except for the migration status referred to in article 361 (diplomatic, consular, official, voluntary worker, and exchange visitor migration status). Likewise, the consular officer must verify that the beneficiary of the visa meets the necessary requirements to be granted the visa, and may conduct a personal interview if needed, comparing the information obtained with the information requested and applying the pertinent principles of discretion.

On the other hand, with respect to temporary tourist or business visas, a measure was ratified to provide that the term of stay in Peruvian territory is up to 183 days, non-extendable in-country, and that the term of validity of these types of visas is 12 months. This term is calculated from the date of issuance by the consular office.

The remainder of temporary and resident visas may be used within their term, which is six months from the date of issuance by the consular office.

A second change is that the Peruvian Immigration Authority (DIGEMIN offices), through an Internal Directive, is requesting that for all cases filed by Colombian, Venezuelan, and Mexican citizens – whether to obtain a visa at the Peruvian consulate abroad or to change status in-country – applicants must submit a resume indicating, among other things, their personal data, professional training, occupation, labor experience, personal references, address in Peru, and address abroad. The Internal Directive also includes case files that are not yet subject to approval (currently ongoing proceedings).

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12. New Publications and Items of Interest

USCIS video: USCIS is developing a Web-based system to allow applicants to submit and track their applications online and enhance USCIS’s ability to process cases with greater accuracy, security, and timeliness. An example video shows how an applicant can set up an online account and submit a request to extend or change nonimmigrant status using the new system. The video also highlights the proposed design and key features of the new system. A prototype of the video, for demonstration purposes only, is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=160205bc4cefe210VgnVCM100000082ca60aRCRD&vgnextchannel=b1161bf8d43ee210VgnVCM100000082ca60aRCRD. USCIS continues to receive and incorporate feedback, so the actual system may be different. Additional information about USCIS’s “transformation” efforts to move from paper-based to electronic systems is available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=637dd260df1cc210VgnVCM100000082ca60aRCRD&vgnextchannel=637dd260df1cc210VgnVCM100000082ca60aRCRD.

TRAC webinar series. The Transactional Records Access Clearinghouse (TRAC) has launched a new report series, with accompanying data tools and regular updates, allowing the public to monitor U.S. Immigration and Customs Enforcement’s exercise of prosecutorial discretion in the immigration courts. TRAC’s new tools allow tracking by charge, nationality, and location (state, court, or specific hearing location). TRAC co-directors Susan B. Long and David Burnham conducted a webinar session on November 30, 2011, on new data and web tools to track immigration court outcomes. A second webinar session to be held on December 7, 2011, at 2 p.m., will feature monitoring ICE charging practices in the immigration court. The session will include a short (approximately 15-20 minutes) overview and demonstration of TRAC’s new web monitoring tools, followed by a question-and-answer session. For the URL to join the webinar, e-mail trac@syr.edu. For more on TRAC, see http://trac.syr.edu/.

Foreign labor certification webpage. The Department of Labor’s Office of Foreign Labor Certification (OFLC) has created a webpage from which members of the public may access and comment on the OFLC 2010 Annual Report, which presents highlights from fiscal year 2010. See http://www.foreignlaborcert.doleta.gov/annual_report.cfm.

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 http://www.greencardstories.com.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration.

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13. Member News

Cyrus Mehta has published a new blog entry. “Shutting Down Global Business in America: Why the H-1B Cap Hurts Us All” is available at http://cyrusmehta.blogspot.com/2011/11/shutting-down-global-business-in.html.

Mr. Mehta was a panelist and speaker at the Practising Law Institute’s 44th Annual Immigration & Naturalization Institute seminar held in New York on November 3-4, 2011, where he spoke on ethics in immigration practice. He was also a speaker at the American Immigration Lawyers Association’s New York Chapter meeting program on November 8, 2011, “Responsibility and Ethics for Immigration Lawyers in NY.” In addition, Mr. Mehta was invited as a guest lecturer at the Fordham School of Social Work, New York, on November 10, 2011, and at Columbia School of Journalism, New York, on November 16, 2011. He was quoted in the Business Standard on November 25, 2011, regarding his views on why the H-1B cap in FY 2012 was reached so early, http://www.business-standard.com/india/news/us-govt-says-h1-b-visa-cap-reached-earliest-in-3-yrs/456625/, and again in the Business Standard on December 1, 2011, regarding H.R. 3012, the bill that would benefit Indian and Chinese nationals seeking green cards, http://business-standard.com/india/news/us-house-eases-wait-for-green-card/457230/.

Angelo Paparelli has published a new blog entry. “Immigration Magnetized, Privatized and Depersonalized” is available at http://bit.ly/rMT9mJ.

Stephen Yale-Loehr will speak on EB-5 immigrant investor issues at a conference sponsored by the New York City chapter of the American Immigration Lawyers Association on December 1, 2011, at the Marriott Marquis hotel in New York City. For more information about the conference, seehttp://www.aila.org/content/default.aspx?docid=17863.

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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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Headlines:

1. H-1B Numbers Dwindling for FY 2012, File Now! – Once the numbers under the cap are gone, the next opportunity to file will be April 1, 2012, for work to begin in FY 2013.

2. EB-2 India, China EB-2 Visa Numbers Jump; Other Visa News – The November employment-based second preference cut-off date for applicants from China and India is the most favorable since August 2007.

3. USCIS To Begin Sending Approval Notices to Attorneys Again Shortly – The change will take effect in approximately six weeks.

4. Reminder: DV Lottery Registration Ends November 5 – The Department of State strongly discourages applicants from waiting until the last minute to enter, because heavy demand may result in website delays and no applications will be accepted after the deadline.

5. USCIS Announces ‘Entrepreneurs in Residence’ Initiative, Discusses EB-5 Enhancements – The initiative builds upon USCIS’s recent efforts to promote startup enterprises and spur job creation, including enhancements to the EB-5 immigrant investor visa program.

6. ‘Fairness for High-Skilled Immigrants Act’ Bill Heads to House Floor for Consideration – The bill would eliminate the per-country numerical limitation for employment-based immigrants and increase it for family-based immigrants.

7. Employment Authorization Document, Certificate of Citizenship Redesigned – The agency anticipates that more than 1 million people will receive the new documents over the next year.

8. DHS Secretary Napolitano Testifies on E-Verify, Enforcement Efforts – In FY 2011, ICE criminally arrested 221 employers accused of violations related to employment, which Secretary Napolitano noted was “an agency record.”

9. ICE Announces Record Removal Numbers for FY 2011 – In FY 2011, ICE’s Office of Enforcement and Removal Operations removed 396,906 individuals, the largest number in the agency’s history.

10. USCIS Designates South Sudan for TPS, Extends Sudan Designation – The 180-day registration period for eligible individuals from South Sudan to submit initial TPS applications began on October 13, 2011, and will remain in effect until April 10, 2012.

11. ABIL Global: Italy Requires Fingerprints for North Africans – Italy now requires fingerprints for short-term visas (business and tourism) for North Africans, as part of a larger European Union effort.

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. H-1B Numbers Dwindling for FY 2012, File Now!

U.S. Citizenship and Immigration Services (USCIS) announced on October 21, 2011, that it has accepted (approved or pending) 46,200 H-1B petitions subject to the 65,000 numerical limitation (cap) for fiscal year (FY) 2012. Up to 6,800 visas are set aside from the 65,000 cap during each fiscal year for the H-1B1 program under the terms of legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

Also, the 20,000 cap for those with advanced U.S. degrees has been reached. By contrast, last year as of October 29, 2010, only 16,700 had been used.

The Alliance of Business Immigration Lawyers (ABIL) recommends that employers needing H-1B workers file quickly. Once the numbers under the cap are gone, the next opportunity to file will be April 1, 2012, for work to begin in FY 2013.

Contact your ABIL attorney for details. More information on the cap count is available at http://www.uscis.gov/h-1b_count.

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2. EB-2 India, China EB-2 Visa Numbers Jump; Other Visa News

The November 2011 Visa Bulletin includes the following information:

The November employment-based second preference cut-off date for applicants from China and India is the most favorable since August 2007. This advancement is expected to generate significant levels of demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices. While significant future cut-off date movements are anticipated, they may not be made on a monthly basis. Readers should not expect such movements to be the norm throughout the fiscal year, and an eventual retrogression of the cut-off at some point during the year is a distinct possibility.

In recent remarks, Charles Oppenheim of the Department of State’s Visa Office discussed predictions for employment-based visa numbers. Among other things, Mr. Oppenheim anticipates that in December 2011, the EB-2 priority date for China and India will move to March 1, 2008, and there could be additional movement in January and February. After that movement, these two categories may slow down and possibly retrogress later in the year.

Mr. Oppenheim predicted that the EB-3 category for Mexico, Philippines, and most other countries should move forward one month every month. The EB-3 category for China is expected to advance one to three weeks per month in the near future.

Prospects for India’s EB-3 category do not look so promising. There are 54,000 cases pending since 2007, and many more with subsequent priority dates that have not yet been filed. Only 2,800 are allowed per year. Potentially this could mean 225,000 to 300,000 people waiting in line for India EB-3 visa numbers, including dependents. Mr. Oppenheim noted that over 50 percent of H-1Bs are given to Indian nationals every year; he said the majority will apply for permanent residence.

The EB-1 and 2 categories for all countries, Mexico, and Philippines, are expected to remain Current for some time, Mr. Oppenheim said. Last year there were 18,000-20,000 fewer cases filed in the EB-1 category, which allowed more EB-1 China and India petitions to move forward along with some EB-2 adjustments from those countries.

The November Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5572.html.

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3. USCIS To Begin Sending Approval Notices to Attorneys Again Shortly

In mid-September, U.S. Citizenship and Immigration Services (USCIS) began sending the I-797 Notice of Action for employer-based visa petitions directly to the company filing the petition rather than the attorney-of-record. After hearing from both companies and attorneys about the negative consequences of this policy change, the USCIS announced on October 20, 2011, that it will once again begin sending approval notices to attorneys. USCIS stated that the change will take effect in approximately six weeks. Accordingly, employers should still remain vigilant in checking their mail for immigration-related documents from USCIS for at least the next two months.
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4. Reminder: DV Lottery Registration Ends November 5

The online registration period for the 2013 diversity visa program (DV-2013), also known as the green card lottery, ends on Saturday, November 5, 2011, at noon (EDT). Entries must be submitted electronically only (no paper applications) with photographs. There are no fees to enter. The Department of State strongly discourages applicants from waiting until the last minute to enter because heavy demand may result in website delays and no applications will be accepted after the deadline. The program makes available 50,000 immigrant visas to eligible persons from countries with historically low rates of immigration to the United States.

For more information or to submit an application, go to https://www.dvlottery.state.gov/.

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5. USCIS Announces ‘Entrepreneurs in Residence’ Initiative, Discusses EB-5 Enhancements

As part of the Obama administration’s “Startup America” efforts to encourage high-skilled immigration into the U.S. under existing laws, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas recently announced the “Entrepreneurs in Residence” initiative to use “industry expertise to strengthen USCIS policies and practices surrounding immigrant investors, entrepreneurs and workers with specialized skills, knowledge, or abilities.” Director Mayorkas announced the initiative at the High Growth Entrepreneurship Listening and Action Session at AlphaLab in Pittsburgh, before the quarterly meeting of the President’s Council on Jobs and Competitiveness with President Obama.

Director Mayorkas said the introduction of expert views from the private and public sectors “will help us to ensure that our policies and processes fully realize the immigration law’s potential to create and protect American jobs.”

USCIS will launch the “Entrepreneurs in Residence” initiative with a series of informational summits with industry leaders to gather strategic input. Informed by the summits, the agency will create a tactical team including entrepreneurs and experts, working with USCIS personnel, “to design and implement effective solutions.” Director Mayorkas said the initiative “will strengthen USCIS’s collaboration with industries at the policy, training, and officer level[s], while complying with all current Federal statutes and regulations.”

The initiative builds upon USCIS’s recent efforts to promote startup enterprises and spur job creation, including enhancements to the EB-5 immigrant investor visa program. USCIS said that since August, it has been conducting a review of the EB-5 process, working with business analysts to enhance related adjudications, implementing direct access to adjudicators for EB-5 regional center applicants, and launching new specialized training modules for USCIS officers on the EB-2 visa classification and L-1B nonimmigrant intracompany transferees.

At a related press conference, Director Mayorkas explained that “[w]e as an agency have been focused in the absence of legislative action to create newer broader pathways for the best and brightest from around the world to come to the United States and really take advantage of the opportunities here to enable our economy to grow and to create jobs for American workers.” He said that the administration is “reviewing our policies and our processes to ensure that we are capturing the existing laws and the legislative intent behind those laws.”

Director Mayorkas said that “Entrepreneurs in Residence” and what it represents “cuts across all visa lines and is not limited to the EB-5 program by any measure.” He said that DHS will be looking at the initiative’s applicability in the arts and entertainment arenas, the O and P visa lines, and the H-1 categories.

He also noted that DHS does not plan to bring in a large cadre of experts, but rather “to start tactically and surgically” with a small group of people, some working on strategy and some on tactics.  He said that DHS is still working out the details and will release more information on next steps later.

USCIS’s statement on “Entrepreneurs in Residence” is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=bd537158910e2310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A transcript of a related press conference held in October 2011 is available at http://www.uscis.gov/USCIS/News/2011/October%202011/transcript_eir_11Oct11.pdf.

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6. ‘Fairness for High-Skilled Immigrants Act’ Bill Heads to House Floor for Consideration

Rep. Jason Chaffetz (R-Utah) introduced the “Fairness for High-Skilled Immigrants Act” (H.R. 3012) on September 22, 2011. The House Judiciary Committee approved the bill with changes on October 27. It now goes to the full House of Representatives for a vote. The bill would eliminate the per-country numerical limitation for employment-based immigrants over three years and increase it for family-based immigrants, from 7 percent per country to 15 percent per country. It also would amend the Chinese Student Protection Act of 1992 to eliminate the provision requiring the reduction of annual Chinese (PRC) immigrant visas to offset status adjustments under the Act.

In media releases, Rep. Chaffetz said, “Per-country limits make no sense in the context of employment-based visas. Companies view all highly skilled immigrants as the same regardless of where they are from—be it India or Brazil. By removing per-country limits, American companies will be able to access the best talent.” He noted that the current percentage cap “has created a backlog of qualified workers.” Rep. Chaffetz pointed out that the legislation will not adversely affect the wages and working conditions of similarly employed workers in the US. but will “encourage high-skilled immigrants who were educated in the U.S. to stay and contribute to our economy, rather than taking the skills they learned and aiding our competitor nations.”

Co-sponsors of the bill include Reps. Tim Griffin (R-Ariz.), Zoe Lofgren (D-Cal.), and Lamar Smith (R-Tex.). It is supported by the U.S. Chamber of Commerce; Compete America, a coalition of high-tech companies including Microsoft, Google, and Oracle; various trade groups including the Business Software Alliance, the Semiconductor Industry Association, and the Information Technology Industry Council; and Immigration Voice, a leading coalition of highly skilled foreign professionals.

Rep. Chaffetz’s statement is available at http://chaffetz.house.gov/press-releases/2011/10/chaffetz-sponsored-immigration-bill-passes-house-judiciary-committee.shtml. The text of the bill is available at http://www.gpo.gov/fdsys/pkg/BILLS-112hr3012ih/pdf/BILLS-112hr3012ih.pdf

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7. Employment Authorization Document, Certificate of Citizenship Redesigned

U.S. Citizenship and Immigration Services (USCIS) announced a redesigned Employment Authorization Document (EAD) and Certificate of Citizenship (Form N-560) with new security features. USCIS began issuing the new EADs on October 25, 2011, and the new N-560s on October 30. The agency anticipates that more than 1 million people will receive the new documents over the next year.

USCIS will replace EADs already in circulation as individuals apply for their renewal or replacement. All previously issued EADs remain valid until the expiration date printed on the card. Previously issued Certificates of Citizenship remain valid indefinitely.

USCIS said the new features of the EAD will better equip workers, employers, and law enforcement officials to recognize the card as definitive proof of authorization to work in the United States. USCIS said it worked closely with the Immigration and Customs Enforcement Forensic Document Laboratory to incorporate technology and tactile features to deter counterfeiting, tampering, and fraud, and to facilitate card authentication.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=338ce8ba05b33310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=19a9e8ba05b33310VgnVCM100000082ca60aRCRD&vgnextchannel=acffaca797e63110VgnVCM1000004718190aRCRD.

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8. DHS Secretary Napolitano Testifies on E-Verify, Enforcement Efforts

Department of Homeland Security (DHS) Secretary Janet Napolitano testified at an oversight hearing on October 26, 2011, before the House Judiciary Committee on worksite enforcement and the E-Verify program, among other issues. She noted that since fiscal year (FY) 2009, U.S. Immigration and Customs Enforcement (ICE) has audited more than 6,000 employers suspected of hiring unauthorized workers, debarred 441 companies and individuals from receiving federal contracts, and imposed more than $76 million in financial sanctions, which she said was more than the total number of audits and debarments conducted during the entire previous administration. In FY 2011, ICE also criminally arrested 221 employers accused of violations related to employment, which Secretary Napolitano noted was “an agency record.”

As of FY 2011, she noted, more than 292,000 employers have enrolled in E-Verify, representing more than 898,000 locations. More than 1,000 new employers enroll each week, and the number of employers enrolled in E-Verify has more than doubled each fiscal year since 2007. In FY 2011 alone, E-Verify processed 17.4 million employment queries, she said.

To improve E-Verify’s accuracy, USCIS reduced mismatches for naturalized and derivative U.S. citizens by adding naturalization data and U.S. passport data to E-Verify, Secretary Napolitano said. Because of this enhancement, in FY 2011, “more than 80,000 queries that previously would have received an initial mismatch requiring correction at the secondary verification stage were automatically verified as work-authorized,” she said. USCIS also has added 80 staff positions to support monitoring and compliance since the beginning of FY 2010. Also, to counter identity theft, USCIS now allows for the verification of passport photos through the E-Verify system.

Judiciary Committee Chairman Lamar Smith (R-Tex). said it was true that DHS has increased the number of audits of companies’ employment eligibility verification forms. However, he said, “these audits are of questionable benefit,” citing a U.S. Government Accountability Office report stating that ICE officials have said that fine amounts are so low that they are not a meaningful deterrent and “employers view the fines as a cost of doing business, making the fines an ineffective deterrent.” He called for more worksite enforcement actions, stating that when ICE does not arrest undocumented workers, “[t]hey go down the street and knock on the door of the next employer, and take jobs away from American workers.”

Secretary Napolitano’s written testimony is available at http://judiciary.house.gov/hearings/pdf/Napolitano%2010262011.pdf. Rep. Smith’s statement is available at http://judiciary.house.gov/news/Statement%20DHS%20Oversight%20Hearing.html.

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9. ICE Announces Record Removal Numbers for FY 2011

U.S. Immigration and Customs Enforcement (ICE) recently announced the agency’s fiscal year (FY) 2011 year-end removal numbers. Overall, in FY 2011, ICE’s Office of Enforcement and Removal Operations removed 396,906 individuals, the largest number in the agency’s history. Of these, nearly 55 percent, or 216,698 of the people removed, were convicted of felonies or misdemeanors, an 89 percent increase in criminal removals since FY 2008. This includes 1,119 people convicted of homicide; 5,848 people convicted of sexual offenses; 44,653 people convicted of drug-related crimes; and 35,927 people convicted of driving under the influence.

The ICE announcement is available at http://www.ice.gov/news/releases/1110/111018washingtondc.htm.

 

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10. USCIS Designates South Sudan for TPS, Extends Sudan Designation

The Department of Homeland Security (DHS) has designated the Republic of South Sudan for temporary protected status (TPS) for 18 months, effective November 3, 2011, through May 2, 2013. The 180-day registration period for eligible individuals to submit initial TPS applications began on October 13, 2011, and will remain in effect until April 10, 2012.

This designation allows eligible South Sudan nationals (and those having no nationality who last habitually resided in the region that is now South Sudan) who have continuously resided in the United States since October 7, 2004, to obtain TPS. In addition to demonstrating continuous residence in the United States since October 7, 2004, applicants must demonstrate that they have been continuously physically present in the United States since November 3, 2011.

DHS said this designation is unique because on July 9, 2011, South Sudan became a new nation and independent from the Republic of Sudan, which has been designated for TPS since 1997. Some individuals who are TPS beneficiaries under the current designation of Sudan may now be nationals of South Sudan, calling into question their continued eligibility for TPS under the Sudan designation. These individuals may, however, now qualify for TPS under the South Sudan designation. The 18-month designation of South Sudan coincides with the 18-month extension period of TPS for Sudan, which was also announced on October 13, 2011.

DHS said it recognizes that individuals who have employment authorization documents (EADs) under Sudan TPS that expire on November 2, 2011, may not receive new EADs under South Sudan TPS until after their current EADs expire. Accordingly, the validity of EADs issued under the TPS designation of Sudan has been automatically extended for six months, through May 2, 2012. This automatic extension includes individuals who are now applying for TPS under the designation of South Sudan but were granted TPS and were issued an EAD under the Sudan designation.

The notice designating the Republic of South Sudan is available at http://www.gpo.gov/fdsys/pkg/FR-2011-10-13/pdf/2011-26537.pdf. The notice announcing the extension of the designation of Sudan for TPS and automatic extension of EADs for Sudanese TPS beneficiaries is available at http://www.gpo.gov/fdsys/pkg/FR-2011-10-13/pdf/2011-26538.pdf.

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11. ABIL Global: Italy Requires Fingerprints for North Africans

Italy now requires fingerprints for short-term visas (business and tourism) for North Africans, as part of a larger European Union effort.

As of October 11, 2011, the Italian consulates in Algeria, Egypt, Libya, Mauritania, Morocco and Tunisia now require fingerprints for individuals applying for short-term Schengen visas (maximum of 90 days for business and tourism). This is intended to improve border control and to expedite the issuance of future visas to those already registered in the Schengen Visa Information System (VIS).

It is expected that this requirement will be enforced in other Italian consulates in the Schengen Area within the next two years. Other European Union (EU) consulates are following suit, as part of a larger EU effort to include fingerprints of visa applicants from North African countries in a database that connects all 25 countries in the Schengen “border-free” zone.

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12. New Publications and Items of Interest

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 will be released soon. For more information or to pre-order, visit http://www.abil.com/green_card.cfm.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration.

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13. Member News

Laura Danielson was mentioned in an article in Foreign Policy on Americans joining foreign wars. The article is available at http://www.foreignpolicy.com/articles/2011/09/02/is_it_legal_for_americans_to_fight_in_another_country_s_army.

Cyrus Mehta has published several new blog entries. “BALCA Says There Is No Need To List Every Benefit of Employment in Job Advertisements” is available at http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus2011102243917. “Prosecutorial Discretion and the ‘Criminal Alien’ ” is available at http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus201110161228.

Mr. Mehta also authored “Due Diligence Considerations for Companies Contracting With Vendor Service Providers,” which was published in the October 2011 edition of New Jersey Lawyer. The article is available at http://www.scribd.com/doc/70961358/Due-Diligence-Considerations-for-Companies-Contracting-With-Vendor-Service-Providers.

Angelo Paparelli was recently quoted in the Daily Journal in an article about the Obama administration’s enforcement efforts and the record numbers of removals. Mr. Paparelli said the record-setting numbers “underscore that Secure Communities is overkill.” Also, in another article discussing a drop in immigration legal work due to the decline in hiring of foreign workers, Mr. Paparelli said, “The burden of demands made by the government for these visas is growing,” and he noted that “[t]he typical work that these employment-based lawyers provided and earned a living on just isn’t there for them anymore.” See http://www.seyfarth.com/index.cfm/fuseaction/news_pub.news_pub_detail/object_id/bd2b30d1-4a41-4809-9808-453a1d4828d9/AngeloPaparelliQuotedintheDailyJournalHiringforeignworkersprovesmoretime-consumingcostly.cfm.

Mr. Paparelli also co-authored an article, “Intubation and Incubation: Remedies for an Ailing Immigration Agency.” See http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202520113033&Intubation_and_Incubation_Remedies_for_an_Ailing_Immigration_Agency&slreturn=1.

H. Ronald Klasko and Stephen Yale-Loehr spoke at an American Immigration Lawyers Association EB-5 conference on October 21, 2011, in San Antonio, Texas. Mr. Klasko spoke on a panel, “Winning the End Game: Removal of Conditions,” and Mr. Yale-Loehr spoke on a panel, “Concentrating EB-5 Investment Impact—Creating and Representing Regional Centers.”

Free webinars on a variety of immigration law-related topics are available at http://www.wolfsdorf.com/freewebinar.

Mr. Yale-Loehr will speak on two panels at the NAFSA Region X conference on November 7, 2011, at the Sagamore Hotel in Bolton Landing, New York. The two panels are “Have Visa (or Not), Will Travel” and “Green is the Color of Hope: Navigating the Terrain of Permanent Residency.” More information about the conference is available at http://www.nafsa.org/nafsaregions/default.aspx?id=21748.

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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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Headlines:

1. House Judiciary Committee Approves E-Verify Legislation – A date for consideration on the House floor has not yet been set.

2. State Dept. Estimates Employment-Based Visa Availability – The October Visa Bulletin includes estimated visa availability over the coming months.

3. House Holds Hearing on Immigrant Investor Program and Job Creation – The regional center program is estimated to have created or saved over 65,000 jobs in the U.S. and led to the investment of over $3 billion in the U.S. economy.

4. Diversity Visa 2013 Registration Begins – The online registration period for DV-2013 begins on Tuesday, October 4, 2011, and ends on Saturday, November 5, 2011.

5. Labor Dept. Postpones Revised H-2B Wage Calculations – The new effective date will be November 30, 2011.

6. SSA Inspector General Finds Anomalies in H-1B Workers’ Use of Social Security Numbers – The OIG released a report on H-1B workers’ use of SSNs that could result in more close monitoring of status violations by H-1B workers and potential liability for H-1B employers.

7. State Dept. To Conduct On-Site Reviews of Summer Work Travel Sponsors – On average, the Department expects that each on-site review will take two full business days and will be preceded by written notice 10 days in advance and a request for certain specified documents.

8. DHS Launches ‘Study in the States’ – Study in the States will examine regulatory changes, expand public engagement between the government and academia, and provide a central online information hub for DHS and its agency partners to provide current and prospective students with updated and relevant visa requirements in a user-friendly format.

9. ICE Issues Notice on Special Relief for Libyan F-1 ESL Students – The relief includes employment authorization for full-time work and the opportunity for a reduced courseload.

10. ABIL Global: Australia Update – As part of “Subclass 457” visa reforms, the Australian government has announced a sponsor accreditation scheme, available beginning on November 1, 2011, for certain standard business sponsors.

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

12. Member News – Member News

13. Government Agency Links – Government Agency Links

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Details:

1. House Judiciary Committee Approves E-Verify Legislation

The House of Representatives Committee on the Judiciary approved a bill on September 21, 2011, that would mandate E-Verify use by U.S. employers for all new employees. A date for consideration on the House floor has not yet been set. The bill, H.R. 2885, was introduced by Lamar Smith (R-Tex.), chairman of the Judiciary Committee.

Among other things, there reportedly was much discussion during markup of the bill about its potential effect on agricultural workers. Rep. Dan Lungren (R-Cal.) said that an E-Verify mandate would “devastate the agricultural industry,” and that the issue should be dealt with “in a practical fashion.” However, Rep. Howard Berman (D-Cal.) offered an amendment that the committee passed, which closed a loophole that would have allowed agricultural employers of returning seasonal workers to be exempt. Rep. Berman said that would amount to a “laughable de facto amnesty,” and Rep. Melvin Watt (D-Cal.) agreed that it would be a “loophole big enough to drive freight trucks, airplanes, and locomotives — all filled with illegal workers — through.” Despite closing the loophole, the bill would still give agricultural employers three years to comply.

A provision to preempt states from mandating E-Verify survived. Rep. Smith argued that preemption “is consistent with a common-sense reading of the Constitution” and that “American businesses need one federal standard for E-Verify, not 50 or more laws.”

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2. State Dept. Estimates Employment-Based Visa Availability

The October Visa Bulletin from the Department of State’s Visa Office notes that employment-based visa availability in the coming months is expected to be “Current” for the employment first preference (EB-1) category; the employment second preference (EB-2) Worldwide, Mexico, and Philippines categories; and the employment fourth and fifth categories. The Department noted that the estimates are subject to fluctuations in demand, but said that categories with a “Current” projection “will remain so for the foreseeable future.”

For categories other than those noted above, the bulletin states:

Employment Second:

China and India: The current cut-off date is approaching the most favorable date previously reached for applicants from China and India. The rapid forward movement is intended to generate demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices, which currently accounts for over 85% of all employment-based number use. Once the level of demand increases sufficiently, it may be necessary to slow or stop the cut-off movement, and a retrogression of the cut-offs at some point during the year is a distinct possibility.

Employment Third:

Worldwide: up to one month

China: one to three weeks

India: up to two weeks

Mexico: up to one month

Philippines: up to one month

The October Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5560.html.

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3. House Holds Hearing on Immigrant Investor Program and Job Creation

On September 14, 2011, the House of Representatives’ Subcommittee on Immigration Policy and Enforcement held a hearing on the EB-5 investor visa program. House Judiciary Committee Chairman Lamar Smith (R-Tex.) opened the hearing by declaring that the “number one job of Congress is to create jobs.” He said the investor visa program plays a part in achieving that goal. “The regional center pilot project, which is almost two decades old, has become the most used part of the investor visa program,” Rep. Smith noted. “Investment through a regional center is attractive to potential investors because they are relieved of the responsibility of running a new business and they can count indirect job creation towards the job creation requirement.” He said that the Invest in the USA trade association “has estimated that the regional center program has created or saved over 65,000 jobs in the U.S. and has led to the investment of over $3 billion in the U.S. economy.” He also noted that the program is set to expire on September 30, 2012. Rep. Smith said the hearing would focus on how to continue bringing entrepreneurs to the U.S. while rooting out fraud and abuse.

Witnesses included William Stenger, President and Chief Executive Officer, Jay Peak Resort, Vermont; Daniel Healy, Chief Executive Officer, Civitas Capital Group, Texas; Jason Mendelson, Managing Director, Foundry Group, Colorado; and Shervin Pishevar, Managing Director, Menlo Ventures, California.

Rep. Smith’s statement and the statements of the witnesses are available at http://judiciary.house.gov/hearings/hear_09142011.html.

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4. Diversity Visa 2013 Registration Begins

The online registration period for the 2013 diversity visa program (DV-2013) begins on Tuesday, October 4, 2011, at noon (EDT) and ends on Saturday, November 5, 2011, at noon (EDT). Entries must be submitted electronically with photographs. There are no fees to enter. The Department of State strongly encourages applicants not to wait until the last week to enter, because heavy demand may result in website delays and no applications will be accepted on paper or after the deadline. For fiscal year 2013, the program will make available 50,000 visas to eligible persons from countries with historically low rates of immigration to the U.S.

For DV-2013, natives of the following countries are not eligible to apply: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. For DV-2013, natives of South Sudan and Poland are now eligible.

To be eligible for the DV program, a person must be a native of one of the listed countries and must meet either the education or work experience requirement of the program. Entrants must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education, or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The Department of Labor’s “O*Net OnLine” database, which will be used to determine qualifying work experience, is available at http://www.onetonline.org/.

The submission site is http://www.dvlottery.state.gov. A successfully registered entry will result in a confirmation screen showing the entrant’s name and a unique confirmation number. The entrant must print this confirmation screen and retain the confirmation number. Starting May 1, 2012, entrants will be able to check the status of their DV-2013 entries by returning to http://www.dvlottery.state.gov, Entrant Status Check, and entering the unique confirmation number and personal information. Entrant Status Check will be the sole means of informing entrants of their selection for DV-2013, providing instructions on how to proceed with an application if selected, and notifying entrants of their appointment for an immigrant visa interview. The Department of State warned that it will be unable to provide an entry confirmation number if it is lost.

The Department of State released “official” instructions in English and “unofficial” instructions in Albanian, Polish, Romanian, Russian, and Uzbek. The English instructions are available at http://travel.state.gov/pdf/DV_2013_instructions.pdf. For more information, see http://travel.state.gov/visa/immigrants/types/types_1318.html.

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5. Labor Dept. Postpones Revised H-2B Wage Calculations

The Department of Labor’s Employment and Training Administration has postponed for 60 days the effective date for the final rule on wage methodology for the H-2B temporary nonagricultural employment program. The effective date will be November 30, 2011. The Department said the delay will permit various courts involved in ongoing litigation concerning the rule’s implementation to determine the appropriate venue for resolution of all claims and allow the Department to avoid the possibility of administering the H-2B program under potentially conflicting court orders.

The Department explained that it published a final rule on January 19, 2011, revising the wage methodology for the H-2B program and setting the effective date of the wage rule as January 1, 2012. On June 16, 2011, in response to a challenge, the U.S. District Court for the Eastern District of Pennsylvania invalidated that date and ordered the department to announce a new effective date within 45 days. In response to that order, the Department issued a notice of proposed rulemaking on June 28, 2011, which proposed that the wage rule take effect 60 days from the date of publication of a final rule. After a period of public comment, the Department published a final rule on August 1, 2011, which set the new effective date for the wage rule as September 30, 2011, without altering the substance of the rule. With the new postponement, the effective date is now set for November 30, 2011.

The announcement is available at http://www.dol.gov/opa/media/press/eta/eta20111404.htm.

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6. SSA Inspector General Finds Anomalies in H-1B Workers’ Use of Social Security Numbers

The Social Security Administration’s Office of the Inspector General (OIG) released a report in September on H-1B workers’ use of Social Security Numbers (SSNs) that could result in more close monitoring of status violations by H-1B workers and potential liability for H-1B employers.

Based on the results of the review, the OIG estimated that about 7,131 (18 percent) of the 38,546 H-1B workers to whom the SSA assigned an SSN in 2007 may have used their SSNs for purposes other than to work for their approved employer. This estimate included about 4,433 (11 percent) H-1B workers who had posted wages during the audit period from an employer other than their Department of Homeland Security (DHS)-approved employer. The estimate also included about 2,698 (7 percent) H-1B workers who had no posted wages from 2007 through 2009.

The OIG noted that unauthorized work by H-1B workers weakens SSN integrity and may require that the agency pay future benefits to individuals who misuse an SSN to work in the U.S. In addition, the OIG noted, H-1B workers who do not work for their approved employer “could pose a risk to homeland security, because they may obtain employment in sensitive areas.”

The OIG also commented on a recent DHS study reporting that about 21 percent of the H-1B petitions it examined involved fraud or technical violations. The types of fraud identified included counterfeit or forged documents, storefront or shell businesses, no bona fide job offer, and misrepresentation of H-1B status. DHS subsequently clarified field guidance and instituted employer site visits to reduce alleged fraud and abuse in the H-1B visa program.

Additionally, the OIG noted, the Department of Justice has pursued criminal charges in some H-1B fraud cases. In one case, six individuals pled guilty to participating in a criminal conspiracy with the owner of a consulting firm to obtain H-1B visas for ineligible or unqualified individuals. All six individuals admitted that they had secured cash-paying jobs from unapproved employers instead of working for the consulting firm. In another case the OIG discussed, U.S. Immigration and Customs Enforcement agents arrested 11 individuals accused of H-1B visa fraud. This investigation involved companies that did not always have jobs available for H-1B workers, which placed the workers in non-pay status after they arrived in the U.S. These companies and workers also allegedly submitted false statements and documents to support their H-1B visa petitions, the OIG noted. Because the subject of the OIG report involved immigration enforcement and visa-related issues, the OIG said it planned to share the report with the DHS and State Department Offices of Inspector General.

The OIG recommended that SSA contact DHS to offer to establish a data match agreement to assist DHS’s efforts to identify and reduce the number of H-1B workers who may use their SSNs for purposes other than to work for their approved employer. SSA agreed with that recommendation.

The OIG report, “H-1B Workers’ Use of Social Security Numbers,” is available at http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-08-11-11114.pdf.

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7. State Dept. To Conduct On-Site Reviews of Summer Work Travel Sponsors

The Department of State announced on September 23, 2011, that it plans to conduct on-site reviews of Summer Work Travel Program sponsors to evaluate regulatory compliance. The program provides foreign college and university students the opportunity to work and travel in the U.S. during their extended academic break (summer vacation) for up to four months.

The Department explained that on April 26, 2011, it published an interim final rule governing the Summer Work Travel category under the Exchange Visitor Program. In that rulemaking, the Department set forth its three-step approach to addressing a number of concerns regarding sponsor administration of this program:

1. The Department adopted a pilot program in January 2011 to enhance protections for foreign nationals from Belarus, Bulgaria, Moldova, Romania, Russia, and the Ukraine.
2. The Department issued the interim final rule, which incorporated many of the concepts of the pilot program into the overall Summer Work Travel Program regulations.
3. The Department intends to conduct on-site reviews to monitor sponsor performance, to assess category-wide regulatory compliance, and to consult with sponsors about implementation of the interim final rule.

Close monitoring of Summer Work Travel sponsors during the summer of 2011 resulted in the Department’s modifying its plans for the on-site reviews. Specifically, the Department evaluated all Summer Work Travel sponsors’ compliance with program regulations regarding the maintenance of current and accurate records in the Student and Exchange Visitor Information System (SEVIS) from September 1, 2009, through August 30, 2010. It also reviewed Summer Work Travel-related complaints for the 2011 summer season and monitored the media for additional reports of program problems. As a result of these efforts, the Department determined that it will not visit sponsors based solely on their size, but instead “will conduct compliance reviews of those designated sponsors whose compliance with the relevant Exchange Visitor Program regulations deserve closer examination by the Department.”

Currently there are 51 designated sponsors in the Summer Work Travel category. Of those, the Department has identified 14 sponsors that will be reviewed. Although the Department may later decide to evaluate additional sponsors, it intends to visit these 14 sponsors (which the Department did not name but said that they together sponsor about 65 percent of all Summer Work Travel participants) between October and December 2011. On average, the Department expects that each on-site review will take two full business days and will be preceded by written notice 10 days in advance and a request for certain specified documents.

The Department said the on-site reviews will focus on evaluating the overall program administration and the effectiveness of the modifications to sponsors’ program administration resulting from implementation of the interim final rule and the pilot program. A primary goal of these reviews is to assess whether the sponsors have been able “to comply and remain in continual compliance with all provisions of Part 62” (22 CFR 62.3(b)(1)). To this end, the reviews will focus on sponsor compliance with the pilot program guidelines and participant monitoring requirements, maintenance of accurate SEVIS records, and sponsors’ relationships with third parties they have engaged to assist in carrying out the core programmatic functions inherent in the administration of exchange visitor programs (i.e., screening, selection, orientation, placement, monitoring, and the promotion of mutual understanding). Other areas of interest may include sponsors’ roles in assisting participants in finding suitable housing; decision-making processes (including the numbers of participants accepted); self-imposed compliance mechanisms; procedures for handling student participant problems (including finding new jobs for those whose pre-arranged placements were unsatisfactory); and policies for refunding deposits or payments to student participants.

Finally, the Department said it intends to use these reviews as an opportunity for sponsors to provide feedback on the pilot program and the interim final rule in general, and more specifically, sponsors’ experience with the relevant new regulatory provisions during the summer season of 2011. Feedback will be used to assist in issuing the final rule. Best practices will be collected from the on-site reviews and shared with the wider sponsor community.

Sponsors who are not included in these reviews and wish to comment should e-mail their comments and concerns to the Department at JVisas@State.gov.

The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-09-23/pdf/2011-24551.pdf.

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8. DHS Launches ‘Study in the States’

On September 16, 2011, Secretary of Homeland Security Janet Napolitano and Immigration and Customs Enforcement (ICE) Director John Morton announced an initiative to streamline the international student visa process for foreign students seeking to study in the U.S. The “Study in the States” initiative is “a key component of a government-wide effort to encourage the best and brightest foreign students to study and remain in the U.S.,” a Department of Homeland Security (DHS) media release said.

“Attracting the best and brightest international talent to our colleges and universities is an important part of our nation’s economic, scientific and technological innovation and competitiveness,” Secretary Napolitano said. “Foreign students and exchange visitors bring invaluable contributions to our nation, and the Study in the States initiative is an important step in empowering the next generation of international entrepreneurs, right here in America.”

DHS noted that more than 1.1 million active nonimmigrant students and exchange visitors and their dependents study in U.S. universities, exchange programs, and training opportunities. Study in the States will examine regulatory changes, expand public engagement between the government and academia, and provide a central online information hub for DHS and its agency partners to provide current and prospective students with updated and relevant visa requirements in a user-friendly format.

“Study in the States encourages international students who seek the wealth of educational opportunities available in the U.S. to remain here following their studies and apply their new skills here in our country,” said ICE Director Morton. “We aim to strike a balance—providing an open and welcoming experience for international students and visitors seeking information, while maintaining the integrity and security of our visa process. This site is an important step toward reaching that goal.”

DHS said that the Study in the States website is intended to be an innovative, interagency portal that will include:

• Interactive and accessible information, allowing prospective and current students to visually navigate steps of the student visa process on their own “Road Map to Success.”
• Links to social media websites, such as Facebook and Twitter, disseminating relevant visa requirements and information to international students, exchange visitors, and the academic community.
• A blog with posted videos, public service announcements, relevant news, requirements, helpful tips, and success stories.

DHS said that Study in the States builds on other new policies intended to encourage talented students from other countries to study and work in the U.S. For example, earlier this year, DHS announced an extension to science, technology, engineering and math (STEM) degrees for international student studies, allowing graduates of a STEM degree to remain in the U.S. through Optional Practical Training (OPT) for up to 29 months after graduation.

For more information on the initiative, see http://studyinthestates.dhs.gov/. The announcement is available at http://www.dhs.gov/ynews/releases/20110916-study-in-the-states.shtm. A fact sheet is available at http://www.dhs.gov/ynews/releases/20110916-fact-sheet-study-in-the-states.shtm.

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9. ICE Issues Notice on Special Relief for Libyan F-1 ESL Students

U.S. Immigration and Customs Enforcement (ICE) issued a notice to SEVIS users on September 14, 2011, on special relief for Libyan F-1 students enrolled in English as a Second Language programs, as outlined in a Federal Register notice published on June 10, 2011. The relief includes employment authorization for full-time work and the opportunity for a reduced courseload. ICE noted that the goal of this relief is to provide full-time employment authorization to eligible students experiencing severe economic hardship due to the civil unrest in Libya.

The notice is available at http://www.ice.gov/doclib/sevis/pdf/1107-01broadcast-libyan-esl-student-relief.pdf. The Federal Register notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-06-10/pdf/2011-14482.pdf.

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10. ABIL Global: Australia Update

As part of “Subclass 457” visa reforms, the Australian government has announced a sponsor accreditation scheme, available beginning on November 1, 2011, for certain standard business sponsors.

The Australian Government has announced plans to introduce Accredited Sponsor (AS) status, beginning on November 1, 2011, to facilitate the priority processing of company nominations and temporary entry subclass 457 visas for sponsored employees. AS status can be applied for either with a new sponsorship application or by variation of an existing sponsorship.

The new accreditation process recognizes that many Australian businesses have a long history of good dealings with immigration authorities, including lodging a high volume of good quality, decision-ready applications and an excellent record of compliance with relevant laws.

Once accredited, the sponsorship agreement will last for 6 years; this compares with the current 3 years for standard sponsors. The same form will be used as for an application to become a standard sponsor. If the criteria for AS status are not met, the application for standard sponsorship will proceed and be assessed in the usual way.

To qualify for AS status, sponsors must demonstrate several additional characteristics above the standard sponsorship requirements at the time of application. The sponsor must:

• be a government agency, a publicly listed company, or a private company, with a minimum of A$4 million turnover per year for the last 3 years
• have been an active 457 visa sponsor for the past 3 years (with a break of no more than 6 months, not due to any sanction)
• have no adverse information known about them based on monitoring by Australian immigration and workplace authorities, including formal warnings and sanctions
• have had at least 30 subclass 457 visa holders granted in the previous 12 months
• have lodged a high level of decision-ready applications over the previous 2 years
• have a non-approval rate of less than 3% for the previous 3 years
• have Australian workers comprising at least 75 percent of their workforce in Australia and a commitment to maintain this level
• have a Collective Agreement or Enterprise Agreement that covers all 457 visa holders earning less than A$180,000 per annum.

If a sponsor fails to maintain these characteristics, AS status can be revoked, resulting in loss of access to priority processing arrangements.

Australian ABIL member Katie Malyon has indicated that the last of these requirements for AS status means that few sponsors apart from State/Territory governments will be able to access the scheme.

For more information, see http://mia.org.au/media/File/Sponsorship_Accreditation_Update.pdf?utm_medium=email&utm_campaign=MIA+Notice+Issue+201140+New+Sponsor+Accreditation+Scheme+Perth+RSMS+Fact+Sheet+Character+Test+Fact+Sheet&utm_content=MIA+Notice+Issue+201140+New+Sponsor+Accreditation+Scheme+Perth+RSMS+Fact+Sheet+Character+Test+Fact+Sheet+CID_ac9bd4bc75ade33def564400ed3ba888&utm_source=Email+marketing&utm_term=Click.

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11. New Publications and Items of Interest

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 will be released on November 8. For more information or to order, visit http://www.abil.com/green_card.cfm.

Case assistance. The U.S. Citizenship and Immigration Services (USCIS) Ombudsman has posted information about obtaining assistance with immigration cases. “If you have a problem with your USCIS application or petition, the Ombudsman may be able to help. The Ombudsman provides an impartial and independent perspective to USCIS in an attempt to resolve problems. Before contacting the Ombudsman for help, first try to resolve your problem by using the USCIS customer service options available to you.” The website lists those options, then notes that:

The Ombudsman may be able to help if:

• You are facing an emergency or hardship caused by a mistake, error, or delay by USCIS.
• You are experiencing a problem with your application or petition that you have not been able to resolve with USCIS.
• Your application or petition is pending beyond USCIS processing times.

The Ombudsman is not able to help if:

• You are seeking legal advice. The Ombudsman does not provide legal advice.
• You are seeking assistance with an issue that does not involve USCIS. The Ombudsman’s authority is limited to assisting with problems that relate to USCIS applications, petitions, or services.

NOTE: While the Ombudsman’s Office provides impartial and independent recommendations to USCIS on how to resolve problems, the Ombudsman’s Office does not have the statutory authority to make or change USCIS decisions.

See http://www.dhs.gov/files/programs/editorial_0497.shtm.

OIG report on adjudication of petitions for nonimmigrant H-1B and H-2B workers. The Department of Homeland Security’s Office of Inspector General recently published “The U.S. Citizenship and Immigration Services’ Adjudication of Petitions for Nonimmigrant Workers (I-129 Petitions for H-1B and H-2B Visas.” The OIG said that Immigration Services Officer (ISO) fraud training is “decentralized and inconsistent” and could be improved. The OIG recommended that the USCIS Director: (1) develop and implement a national, post-basic fraud identification and response training program that identifies current fraud trends; and (2) ensure that this fraud training is conducted annually for all ISOs and supervisors responsible for H-1B and H-2B adjudication. The USCIS Director concurred with both recommendations. The report is available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_11-105_Aug11.pdf.

ICE fact sheet on applying for a driver’s license or ID card for F, M, J nonimmigrants. U.S. Immigration and Customs Enforcement released a fact sheet for designated school officials and responsible officers to help F, M, or J nonimmigrants (primary and dependent) obtain driver’s licenses or state identification cards. The fact sheet, which includes general questions and answers, known issues, and contact information, is available at http://www.ice.gov/doclib/sevis/pdf/dmv_factsheet.pdf.

Health profession workforce development. The Department of Health and Human Services’ Health Resources and Services Administration (HRSA) is the lead federal agency responsible for collecting data and certifying communities as Health Professional Shortage Areas. The website includes information on health profession grants, scholarships, and loans; a fact sheet; and a link to the American Recovery and Reinvestment Act. See http://bhpr.hrsa.gov/about/index.html.

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12. Member News

Steve Clark moderated Session 3 of the ABIL webinar series, “U.S. Investment Visas and Green Cards for Foreign Nationals.” Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, was held on August 16, 2011. Panelists included ABIL members Robert Loughran as well as Stephen Yale-Loehr and H. Ronald Klasko.

Robert Loughran was invited on August 15, 2011, to meet with the leadership of the Texas Department of Public Safety (DPS) regarding new lawful presence documentation language that has been added to the Texas Transportation Code and to comment on proposed DPS regulatory guidance and training in order to minimize inconvenience and discrimination toward immigrants in Texas applying for licenses and identification cards.

Cyrus Mehta has posted a new blog entry. “Reinterpreting the Automatic Conversion Provision of the CSPA to help DREAM Kids” is available at http://cyrusmehta.blogspot.com/2011/09/reinterpreting-automatic-conversion.html.

Mr. Mehta was on a panel at the 5th Biennial Global Immigration Conference of the International Bar Association in London on September 23-24, 2011. For more information, see http://www.int-bar.org/conferences/conf383/binary/London%20Global%20Immigration%202011%20programme.pdf. He also spoke on a panel on “Teaching Ethics Across the Curriculum” for Brooklyn Law School faculty on September 21.

Angelo Paparelli has posted a new blog entry. “Off-Message Immigration Bureaucrats Undermine President’s Jobs Push by Refusing L-1B Visas to Indian Citizens” is available at http://bit.ly/mODJd7.

Stephen Yale-Loehr was quoted in Bloomberg Businessweek. In comments on the EB-5 investor program, he said, “This is a unique way for immigration to enhance the U.S. economy … at no expense to the U.S. taxpayer.”

Mr. Yale-Loehr was featured on a one-hour radio talk show on WAMU on September 28, 2011, about the EB-5 program. The URL for the interview is at http://thekojonnamdishow.org/shows/2011-09-28/investment-immigration (click on “Listen”).

Mr. Yale-Loehr was quoted in the September 29, 2011, edition of the Wall Street Journal. In an article about a federal judge’s upholding of key parts of a new Alabama law aimed at stopping illegal immigration, Mr. Yale-Loehr noted, “Judge Blackburn seems to believe it’s not a crime for an undocumented immigrant to solicit work but it is a crime for an undocumented person to do business with the state. The Supreme Court needs to decide this issue once and for all.” The article is available at http://online.wsj.com/article/SB10001424052970204226204576599012968434494.html?grcc=88888&mod=WSJ_hpp_sections_news.

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13. 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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