Headlines:

1. DOL Suspends Prevailing Wage Determinations – Processing of prevailing wage determinations (PWDs), redeterminations, and Center Director Reviews have been suspended temporarily; prevailing wage requests filed since early June 2011 are still pending.

2. Ombudsman Recommends That USCIS Improve EAD Process – The Ombudsman noted that many problem areas remain unaddressed.

3. Obama Administration Announces Focus on High-Risk Cases in Removal Proceedings – Secretary of Homeland Security Janet Napolitano announced that the Obama administration plans to focus removal efforts on high-priority cases such as convicted felons and others posing a threat to public safety, and to initiate a related interagency case-by-case review.

4. USCIS Announces Extension of Deferred Enforced Departure for Liberians – Employment authorization is extended automatically for eligible Liberian nationals covered under deferred enforced departure (DED) through March 31, 2012.

5. ABIL Preparing Amicus Curiae Brief on Extraordinary Ability Case – This decision will critically affect the adjudication of immigrant petitions for persons of extraordinary ability, outstanding professors or researchers, and exceptional ability immigrants.

6. USCIS Issues Policy Memo on B-2 Extensions for Cohabiting Partners and Other Household Members of Principal Nonimmigrants – The new policy memorandum on B-2 extensions for cohabiting partners and other household members of principal nonimmigrants clarifies, among other things, that one or more extensions are appropriate in the exercise of discretion for household members, including the cohabitating partner of a principal nonimmigrant visa holder, when other eligibility requirements are met.

7. USCIS Redesigns Customer Service Center 1-800 Options – USCIS shortened and reorganized the menu options.

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links

Details:

1. DOL Suspends Prevailing Wage Determinations

The Department of Labor (DOL) recently announced that the Office of Foreign Labor Certification’s (OFLC) National Prevailing Wage Center (NPWC) has suspended temporarily processing of prevailing wage determinations (PWDs), redeterminations, and Center Director Reviews. The NPWC handles PWDs for the PERM labor certification, H-1B, H-1B1 (Chile/Singapore), H-2B, and E-3 programs. As a result of the suspension, prevailing wage requests filed since early June 2011 are still pending. Previously, such requests were routinely processed in three to four weeks.

DOL also published a final rule on wage methodology for the H-2B (temporary nonagricultural employment) program, effective September 30, 2011.

In response to practitioners’ inquiries concerning pending requests, the NPWC has been issuing the following e-mail:

The OFLC National Prevailing Wage Center is experiencing delays in processing prevailing wage determinations as it is currently working to reissue certain determinations to comply with a court order issued June 15, 2011 in the United States District Court for the Eastern District of Pennsylvania. A Notice of Proposed Rulemaking was published in the Federal Register on June 28, 2011, and a Final Rule will be published on August 1. All Center resources are currently being utilized to comply with this court order. The processing of Prevailing Wage Determinations, redeterminations, and Center Director Reviews has been temporarily suspended. Processing will resume as soon as full compliance with the court order has been completed by OFLC. If you have further questions concerning your PWD, please contact 202-693-3010.

The American Immigration Lawyers Association (AILA) published notes on a stakeholder call with the Department of Labor (DOL) about this topic. Among other things, Dr. Bill Carlson, a representative from the Office of Foreign Labor Certification, said that DOL was very aware of the impact of the prevailing wage hold and that the agency has been reviewing all appropriate suggestions from stakeholders. However, in considering possible suggestions, he stated that DOL was not considering any proposal that would require waiving regulatory requirements. DOL must issue all of the H-2B wage redeterminations before September 30 to comply with the court order. The stakeholder notes say that after DOL has cleared the H-2B wage redeterminations, it will then move resources to H-2B processing and must process those cases within 30 days. As those are processed, DOL will begin working on PERM and H-1B wage requests.

The Department of Labor’s final rule, published at 76 Fed. Reg. 45667 (Aug. 1, 2011), is available at http://www.gpo.gov/fdsys/pkg/FR-2011-08-01/pdf/2011-19319.pdf. AILA’s notes are available at http://xa.yimg.com/kq/groups/15854395/1728587735/name/AILA-DOL%20stakeholder%20call%208-18-11.pdf.

Back to Top

2. Ombudsman Recommends That USCIS Improve EAD Process

The Ombudsman for U.S. Citizenship and Immigration Services (USCIS) recently made recommendations focused on delays due to processing and adjudications issues of employment authorization document (EAD) applications. The Ombudsman noted that although USCIS has implemented procedures to resolve certain issues, many problem areas have not been addressed. When processing is delayed, the Ombudsman noted, “individuals and employers experience significant adverse consequences such as job loss and disruption in business operations.” The Ombudsman recommended specific actions that USCIS can take to improve the EAD process, including:

1. Establishing methods at local offices to facilitate immediate resolution;
2. Establishing a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;
3. Improving monitoring and ensuring real-time visibility through an automated system for tracking processing times;
4. Following established internal procedures for issuing interim EADs in cases where background checks are pending; and
5. Issuing replacement EADs with validity dates beginning on the date the old EAD expires.

The Ombudsman identified several ways to implement these recommendations that build upon existing USCIS processes.

The Ombudsman’s recommendations are available at http://www.dhs.gov/xlibrary/assets/cisomb-employment-authorization-documents-07182011.pdf.

Back to Top

3. Obama Administration Announces Focus on High-Risk Cases in Removal Proceedings

On August 18, 2011, Secretary of Homeland Security Janet Napolitano announced that the Obama administration plans to focus removal efforts on high-priority cases such as convicted felons and others posing a threat to public safety, and to initiate an interagency case-by-case review to ensure that both those currently in removal proceedings and new cases placed in removal proceedings meet those priorities. Secretary Napolitano cautioned that this process “will not provide categorical relief for any group.”

A related memorandum from U.S. Immigration and Customs Enforcement (ICE) issued in June on prosecutorial discretion notes:

The following positive factors should prompt particular care and consideration:

• veterans and members of the U.S. armed forces;
• long-time lawful permanent residents;
• minors and elderly individuals;
• individuals present in the United States since childhood;
• pregnant or nursing women;
• victims of domestic violence; trafficking, or other serious crimes;
• individuals who suffer from a serious mental or physical disability; and
• individuals with serious health conditions.

In exercising prosecutorial discretion in furtherance of ICE’s enforcement priorities, the following negative factors should also prompt particular care and consideration by ICE officers, agents, and attorneys:

• individuals who pose a clear risk to national security;
• serious felons, repeat offenders, or individuals with a lengthy criminal record of any kind;
• known gang members or other individuals who pose a clear danger to public safety; and
• individuals with an egregious record of immigration violations, including those with a record of illegal re-entry and those who have engaged in immigration fraud.

The new focus on only deporting high-priority cases, such as criminals, does not amount to an amnesty program for others, as Secretary Napolitano noted. Nor does the new policy necessarily mean that people whose removal cases are stayed can obtain work permits. They will remain in immigration limbo: not in removal proceedings but not legal either. A consumer advisory warning immigrants about the limited nature of the administration’s new policy is at http://www.aila.org/content/default.aspx?docid=36705.

Secretary Napolitano’s letter is available at http://blogs.suntimes.com/sweet/11-8949_Durbin_Dream_Act_response_08.18.11.pdf. The ICE memo is available at http://www.ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf. An ICE FAQ about the new policy is at http://www.ice.gov/doclib/about/offices/ero/pdf/immigration-enforcement-facts.pdf.

Back to Top

4. USCIS Announces Extension of Deferred Enforced Departure for Liberians

U.S. Citizenship and Immigration Services (USCIS) announced on August 16, 2011, its intention to extend employment authorization automatically for Liberian nationals covered under deferred enforced departure (DED) through March 31, 2012. USCIS’s announcement follows President Obama’s announcement of his decision to extend DED through March 31, 2013, for qualified Liberians and those persons without nationality who last habitually resided in Liberia. The six-month automatic extension of existing employment authorization documents (EADs) for eligible Liberians will permit them to continue working while they file their applications for new EADs. The new EADs will be effective for the full 18 months of the DED extension.

Although DED was scheduled to end for Liberian nationals on September 30, 2011, the administration decided that there are compelling foreign policy reasons to continue deferring enforced departure.

Liberians not eligible for DED include:

• Those who did not have temporary protected status (TPS) on September 30, 2007, and are therefore not covered under current DED;
• Certain criminals (e.g., aggravated felons and persons convicted of two misdemeanors);
• Persons subject to the mandatory bars to TPS; and
• Other ineligible persons as described in the President’s related memorandum.

In addition to automatically extending the validity of EADs for Liberian nationals covered under DED, USCIS published a notice in the Federal Register with instructions for these individuals on how to obtain employment authorization for the remainder of the DED extension. Liberian nationals covered under DED also must include the Application for Employment Authorization (Form I-765) and a filing fee of $380 or a fee waiver request.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=db50a859e04d1310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The President’s memorandum is available at http://www.whitehouse.gov/the-press-office/2011/08/16/memorandum-president-regarding-deferred-enforced-departure-liberians. The Federal Register notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-08-25/html/2011-21842.htm.

Back to Top

5. ABIL Preparing Amicus Curiae Brief on Extraordinary Ability Case

The Alliance of Business Immigration Lawyers (ABIL) is preparing an amicus curiae (“friend of the court”) brief to the Administrative Appeals Office (AAO) in response to U.S. Citizenship and Immigration Services’ (USCIS) recent request concerning the appeal of a denied immigrant petition for a foreign national seeking to be classified as an alien of extraordinary ability. This decision will critically affect the adjudication of immigrant petitions for persons of extraordinary ability, outstanding professors or researchers, and exceptional ability immigrants. In ABIL’s view, USCIS misread the U.S. Court of Appeals for the Ninth Circuit when it reviewed an AAO decision dismissing the appeal of an extraordinary ability petition. Kazarian v. USCIS, 596 F.3d 1115 (9th Cir. 2010).

Among other things, the Kazarian court firmly reminded both the USCIS and the AAO that they must carefully apply the statutory and regulatory requirements when performing their duties. Although the “extraordinary ability” visa requirements are restrictive, the AAO cannot impose arbitrary requirements on applicants. By forcing the USCIS and the AAO to make their determinations based on the regulations exactly as written, the Ninth Circuit has assured that the burden placed on future “extraordinary ability” visa applicants will not be higher than what the immigration regulations require. The Kazarian court scolded USCIS for making up and applying extra-regulatory evidentiary requirements, yet USCIS has responded by requiring a “final merits determination” analysis.

The amicus brief will be prepared by ABIL members Bernard Wolfsdorf, Cyrus Mehta, Robert Loughran, Charles Kuck, and Angelo Paparelli. Sadly, the implementation of USCIS’s erroneous policy has resulted in almost one-third, or about 12,000, first preference immigrant visa numbers going “unused” last year as the top foreign nationals in the sciences, arts, education, business, or athletics have been turned away in droves, only to make other countries more competitive.

Back to Top

6. USCIS Issues Policy Memo on B-2 Extensions for Cohabiting Partners and Other Household Members of Principal Nonimmigrants

U.S. Citizenship and Immigration Services’ new policy memorandum on B-2 extensions for cohabiting partners and other household members of principal nonimmigrants does not change eligibility requirements for change of status to B-2, or extension of B-2 status. Rather, it clarifies that such a change and/or one or more extensions are appropriate in the exercise of discretion for household members, including the cohabitating partner of a principal nonimmigrant visa holder, when other eligibility requirements are met.

When evaluating an application for change to or extension of B-2 status based on cohabitation, the memo states, the cohabitating partner’s relationship to the principal nonimmigrant in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification. When considering a change of status and/or multiple extensions for the cohabitating partner or other household member, the finite nature of the stay, rather than the duration of the stay or number of extensions sought, is controlling with respect to nonimmigrant intent. For example, the visit should be considered temporary even if the status may be extended several times over several years to match an extended course of study undertaken by the principal. However, while the I-539 (B-2) application must be adjudicated on its own merits, the memo notes, a finding that the principal nonimmigrant lacks nonimmigrant intent is a negative factor in the exercise of discretion.

The policy memorandum is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2011/August/Cohabitating_Partners_PM_081711.pdf.

Back to Top

7. USCIS Redesigns Customer Service Center 1-800 Options

U.S. Citizenship and Immigration Services (USCIS) recently redesigned its Interactive Voice Response System (IVR), accessible via the National Customer Service Center. Among other things, USCIS shortened and reorganized the menu options. The new IVR has three main menu options, a decrease from the 10 options previously in place. The three new options are Immigration Services, Immigration Information, and Special Programs and Other Resources.

The NCSC main number is 1-800-375-5283. Those who are outside the United States and have filed an application or petition with a USCIS Service Center may call 785-330-1048 to check the status of their case via an automated system.
For more information, see http://www.aila.org/content/default.aspx?docid=36776 and http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=943696981298d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=ddce0b89284a3210VgnVCM100000b92ca60aRCRD.

Back to Top

8. 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.

Reforming employment-based immigration. The National Foundation for American Policy recently published “Reforming America’s Regulations and Policies on Employment-Based Immigration,” a policy brief that makes recommendations and advocates making changes to the U.S. immigration system to attract and keep highly skilled foreign-born workers in the U.S. The report is available at http://www.nfap.com/pdf/ReformingEmploymentBasedImmigration.NFAPPolicyBrief.Aug2011.pdf.

E-Verify “Self Check” available in Spanish, additional states. U.S. Citizenship and Immigration Services (USCIS) recently announced that “Self Check,” a free online E-Verify service that allows workers to check their own employment eligibility status, is now available in Spanish and accessible to residents in 16 additional states: California, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Missouri, Nebraska, Nevada, New Jersey, New York, Ohio, South Carolina, Texas, Utah, and Washington. Self Check initially was launched in March 2011 for residents of Arizona, Colorado, Idaho, Mississippi, Virginia, and the District of Columbia. The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=080477c3bddc1310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The Spanish-language version of E-Verify Self Check is available at http://www.uscis.gov/portal/site/uscis-es/menuitem.e693c9cf3c2f7d18d52fae1074a191a0/?vgnextoid=3ad29bacc22e0310VgnVCM100000082ca60aRCRD&vgnextchannel=3ad29bacc22e0310VgnVCM100000082ca60aRCRD.

Back to Top

9. Member News

Charles Kuck was quoted on CNN.com on August 26, 2011. A day after new Obama administration guidelines focusing removal efforts on high-risk cases were released, Mr. Kuck argued in court that his clients’ cases should be dropped under the new guidelines. The clients were released from a detention center. “These kids were detained for months. We had previously asked for their release numerous times,” he said. “It was only after the memo came out that they were released.”

Cyrus Mehta has posted several new blog entries. The blog “Final Immigration Lesson from the Dismissal of the Strauss-Kahn Case” analyzes the concern that in the future immigrants may be more reluctant to come forward and press charges if they have been victims of sex crimes. The blog is available at http://cyrusmehta.blogspot.com/2011/08/final-immigration-lesson-from-dismissal.html. “Fewer People To Get Deported Under New Policy: Has the Administration Finally Come To Its Senses?” discusses a new policy to identify low-priority removal cases for the exercise of prosecutorial discretion. The blog is available at http://cyrusmehta.blogspot.com/2011/08/fewer-people-to-get-deported-under-new.html.

Angelo Paparelli has posted several new blog entries. The blog “A Cancer Within the Immigration Agency” discusses USCIS’s new Fraud Detection and National Security Directorate. The blog is available at http://www.nationofimmigrators.com/enforcementusice/a-cancer-within-the-immigration-agency/index.html. “In Praise of Immigrant DREAMers” discusses undocumented youth who dream of living out their aspirations in the U.S. The blog is available at http://www.nationofimmigrators.com/immigration-reform/in-praise-of-immigrant-dreamers/.

Stephen Yale-Loehr was quoted in the August 18, 2011, edition of the New York Times (“Fewer Youths To Be Deported in New Policy”). Commenting on the Obama administration’s new policy of focusing on high-priority threats to public safety when making removal decisions, Mr. Yale-Loehr said the new policy could benefit “illegal immigrants who were stopped for traffic violations and thrown into deportation proceedings, as well as people whose only violation of immigration law is that they stayed beyond the expiration of their visas or worked here illegally.” The article is available at http://www.nytimes.com/2011/08/19/us/19immig.html.

Mr. Yale-Loehr co-wrote an article that was referenced in “Reforming America’s Regulations and Policies on Employment-Based Immigration,” released on August 17, 2011, by the National Foundation for American Policy. Mr. Yale-Loehr’s article, “Attracting the Best and Brightest: A Critique of Current U.S. Immigration System,” was originally published in 38 Fordham Urban Law Journal 183 (2010).

Back to Top

10. Government Agency Links

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

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

Back to Top

Headlines:

1. Company Held Liable for Back Wages of H-1B Employee Who Never Worked – The failure to prove every element of a bona fide termination left an employer who petitioned for an H-1B worker’s admission liable for the entire period of authorized employment.

2. Labor Dept. Weighs In on Staggered Dates of Need – Can an employer file a single application for temporary employment certification for staggered dates of need? The answer is no.

3. EAD Processing Delays Cause Hardship, Ombudsman Says – When processing for EADs is delayed, individuals and employers experience adverse consequences; the Department of Homeland Security’s Ombudsman has made related recommendations.

4. State Dept. Announces New Requirement for Passport Applications – The full names of an applicant’s parent(s) must be listed on all certified birth certificates for them to be considered primary evidence of U.S. citizenship for all passport applicants, regardless of age.

5. USCIS Releases EB-5 Investor Statistics – U.S. Citizenship and Immigration Services (USCIS) released data on EB-5 filings and regional centers (RCs) for FY 2010 and the first two quarters of FY 2011.

6. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience for the July 6 webinar includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.

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

8. Member News – Member News

9. Government Agency Links – Government Agency Links

Details:

1. Company Held Liable for Back Wages of H-1B Employee Who Never Worked

Ganze & Company, an accounting firm in Napa Valley, California, filed a labor condition application (LCA) to hire Kevin Limanseto as an H-1B employee but subsequently decided not to employ him. However, Ganze never informed the government of that change, and Mr. Limanseto complained to the Department of Labor that he had never been paid. Administrative Law Judge William Dorsey noted:

Informing the immigration authorities that the employment has been terminated is the quid pro quo to be relieved of one of the duties the employer promises to fulfill when it signs the labor condition application: the duty to pay the required wage rate. Until it does, the employer remains on the hook for the H-1B worker’s wages and benefits. For the price of a postage stamp, the Employer often can absolve itself of further liability.

In this case, Ganze did not report that Mr. Limanseto was not employed until more than two years later. In addition, Ganze did not pay Mr. Limanseto’s trip home, which is another element of a bona fide termination. The failure to prove every element of a bona fide termination leaves an employer who petitioned for an H-1B worker’s admission liable for the entire period of authorized employment, ALJ Dorsey noted. Therefore, he found that Ganze was liable for wages for the entire period of the LCA, plus interest, among other things. The total amount for which Ganze is liable exceeds $156,000.

The decision, Matter of Limanseto, 2011-LCA-00005, is available here.

Back to Top

2. Labor Dept. Weighs In on Staggered Dates of Need

The Department of Labor’s Office of Foreign Labor Certification recently responded to the question, “Can an employer file a single Application for Temporary Employment Certification for staggered dates of need?” The answer is no.

The Department explained that an application must contain a single date of need for all workers under that application. Under the H-2A program, a date of need is defined as the first date the employer requires the services of H-2A and U.S workers as indicated in the Application for Temporary Employment Certification. The date is not an indication of the first date of need for some workers, but for all the workers who are the subject of the application. The Department said it expects that the filing of an application indicates that the employer has full-time work available for all positions it is requesting for that single start date and that all information reflects the employer’s true need. Changing the date of need for some or all workers invalidates the validity of the labor market test, the Department said, and thereby eliminates the basis for granting the labor certification. In such a case, a different date was not advertised to U.S. workers, particularly those who, if they had been apprised of the later date, could have made themselves available for the job opportunity and therefore made the approval of the certification unnecessary. Where the employer has staggered dates of need, the employer must file a separate application for each date of need.

The Department’s response is available here.

Back to Top

3. EAD Processing Delays Cause Hardship, Ombudsman Says

The Department of Homeland Security’s Ombudsman noted on July 11, 2011, that U.S. Citizenship and Immigration Services (USCIS) in some cases fails to meet its regulatory requirement to process applications for employment authorization in 90 days, and USCIS generally does not issue interim employment authorization documents (EADs). When processing for EADs is delayed, individuals and employers experience adverse consequences. Applicants experience financial hardship due to job interruption and termination, business operations stall due to loss of employee services, families face suspension of health benefits, and individuals have difficulty renewing driver’s licenses. EAD processing delays are exacerbated by the lack of immediate resolution through USCIS’ designated venues.

The Ombudsman recommended that USCIS take the following actions to improve EADs processing:

1. Establish methods at local offices to facilitate immediate resolution;
2. Establish a uniform processing time goal of 45 days for adjudication and 60 days for issuance of an EAD;
3. Improve monitoring and ensure real-time visibility through an automated system for tracking processing times;
4. Follow established internal procedures for issuing interim EADs in cases where background checks are pending; and
5. Issue replacement EADs with validity dates beginning on the date the old EAD expires.

USCIS currently directs applicants experiencing EAD delays to contact the National Customer Service Center (NCSC) or the local district office, the Ombudsman noted. However, neither venue has the ability to provide direct assistance. USCIS representatives or officers assist individuals with delayed I-765s by submitting service requests or sending e-mails to the National Benefits Center (NBC) or service centers. The Ombudsman noted that USCIS is reviewing the procedures in place and may provide field offices with updated guidance on how to assist individuals with EAD applications pending past 90 days.

While both service requests and e-mails alert the applicable office of a delay, it may take up to 10 or more days for an I-765 to be adjudicated and an EAD to be delivered, the Ombudsman said. Additionally, while customers receive responses to service requests in five days for expedite requests, and 15 days for all other requests, the responses are often “generic and unhelpful,” the Ombudsman noted. Sometimes the responses state that an applicant’s case is “under review” but do not provide a timeline for issuance of the EAD. Other responses merely state that a decision will be issued in 30 or 60 days, when the application already has been pending past 90 days. “Such responses fail to address the problem because they do not assist the customer in rapidly obtaining an interim or final EAD. The failure to communicate useful information to customers often results in repeated telephone and in-person inquiries causing inefficiencies for USCIS,” the Ombudsman said.

USCIS’ website also lists alternative contact information, such as e-mail addresses, for service centers and the USCIS Headquarters Office of Service Center Operations. However, before people e-mail those addresses, USCIS advises them to wait 30 days for a response from the NCSC and 21 days for a response from the service centers, “when even one day of delay may lead to financial loss for EAD applicants and business disruption for employers,” the Ombudsman said.

The Ombudsman termed a “best practice” the Vermont Service Center’s five-day processing time goal for background checks conducted in connection with adjudication of an I-765. Adjudicators e-mail cases to the Background Check Unit (BCU), identifying the form type and marking it as an expedite request in the subject line. The BCU monitors the inbox to ensure that cases are promptly referred to adjudicators and resolved within the specified timeline. With this process, the Ombudsman said, USCIS is able to resolve minor concerns immediately while carefully reviewing cases that involve national security, egregious public safety issues, criminal convictions, or immigration fraud.

The Ombudsman’s report is available here.

Back to Top

4. State Dept. Announces New Requirement for Passport Applications

The Department of State announced that the full names of an applicant’s parent(s) must be listed on all certified birth certificates for them to be considered primary evidence of U.S. citizenship for all passport applicants, regardless of age.

The announcement is available here. Links to vital records offices state-by-state are available here.

Back to Top

5. USCIS Releases EB-5 Investor Statistics

U.S. Citizenship and Immigration Services (USCIS) released data on EB-5 filings and regional centers (RCs) for fiscal year (FY) 2010 and the first two quarters of FY 2011.

The agency noted that as of June 30, 2011, there are 147 approved regional centers (RCs) operating in 39 states, including the District of Columbia and Guam. Most (90 to 95 percent) of the individual Form I-526 (Immigrant Petition by Alien Entrepreneur) petitions filed each year are filed by those who are investing in RC-affiliated commercial enterprises. There are 83 initial RC proposals pending at USCIS, and nine RC proposals seeking to amend approved RCs.

USCIS figures continue to show a steep increase in the number of RC filings and EB-5 visa approvals. The agency reported 146 initial RC proposal filings in the first and second quarters of FY 2011, compared to 110 initial filings in all of FY 2010. In the first and second quarters of FY 2011, the agency approved 25 initial RC proposals and denied 11, an approval rate of 69 percent. This was a big increase from FY 2010, when USCIS approved 36 and denied 30 during the entire fiscal year.

USCIS also reported significant increases in individual I-526s and I-829s (Petition by Entrepreneur to Remove Conditions). In the first and second quarters of FY 2011, USCIS received 1,601 I-526 petitions, compared to 1,955 for all of FY 2010. The increase in the number of I-829 petitions was even more dramatic, with 1,150 received in the first and second quarters. By comparison, USCIS received 768 I-829 petitions in all of FY 2010.

In the first and second quarters of FY 2011, the agency approved 407 I-526 petitions and denied 96, while in all of FY 2010 USCIS approved 1369 and denied 165. USCIS approved 166 I-829 petitions and denied 26 in the first and second quarters, compared to approving 274 and denying 56 for all of FY 2010.

USCIS also reported that although the target processing time for I-526 petitions is 5 months, actual processing times are reaching 5.5 months; however, some in the field have said it is closer to 7 months. USCIS’s target processing time for both initial and amended RC proposals is 4 months; the agency reported current processing times of 4.5 months for initial RC filings but only 1 month for amended filings. For I-829 filings, the agency reports that it is beating its target processing time of 6 months; USCIS said current processing time for I-829 filings is 1 month. USCIS said it strives to finalize EB-5 cases within 30 days after responses to requests for evidence (RFEs) are received.

USCIS is on track to approve a record number of EB-5 visas. Its preliminary estimate is that 2,129 EB-5 visas were issued in the first and second quarters of 2011, compared to 1,885 in all of FY 2010. The previous record was 4,218 EB-5 visas issued in FY 2009.

The next EB-5 “stakeholder engagement” meeting will be held on September 15, 2011, at 1 p.m. This engagement will be an opportunity for USCIS to share information on the EB-5 program and address stakeholders’ related topics of interest. USCIS is specifically interested in receiving topics related to the Form I-912A, Supplement to Form I-924. The deadline to submit agenda items is August 15, 2011. An open forum for questions and answers (non-case-specific) will be provided at the engagement. Click here for details on registering to attend the engagement either in person or by telephone, and instructions on submitting agenda items.

USCIS’s presentation from the most recent engagement is available here.

Back to Top

6. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, but each has advantages, disadvantages, and limits.

A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies:

• Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
• Session 2: EB-5 regional center applications and project pre-approval petitions, was held July 6 at 3 p.m. (ET). (A recording of the webinar is available for purchase.) Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
• Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 p.m. (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before each session, as well as a recording of the webinar. The cost is $89 for an individual session or $249 for all three sessions, live or recorded. For more information, click here. To register, click here. For more information, contact Lauren Anderson at lauren@abil.com or visit http://abil.com.

Back to Top

7. New Publications and Items of Interest

“Trusted employers” and boosting the economic contribution of employment-based immigration. In its recently released report, “Eight Policies to Boost the Economic Contribution of Employment-Based Immigration,” the Migration Policy Institute (MPI) recommends many solutions to enhance economic growth and competition through employment-based immigration reform. MPI’s report suggests enabling governments to differentiate between higher and lower-risk employers through a preapproval system. The idea is to reward such employers with simplified application procedures or similar benefits. For example, a “trusted employer” concept would allow employers with demonstrated processes, resources, and tracking systems in place to comply with U.S. immigration laws to spend less time on repetitive paperwork and more time on their most critical goals – creating jobs and growing the economy. MPI notes, “Employers are central to immigration systems.”

The report is available here.

New USCIS data reports webpage. U.S. Citizenship and Immigration Services (USCIS) is posting online new data reports on agency performance in a broad range of data and operational areas. USCIS said the reports were prepared at the request of agency stakeholders. The agency’s Office of Performance and Quality has released 10 data sets. Several will be updated periodically, including processing times and performance data for the Application for Naturalization (Form N-400), performance data for the Application to Register Permanent Residence or Adjust Status (Form I-485), and the total number of receipts and approvals by quarter and year-to-date for all form types. The webpage also includes data on employment-based benefit requests, such as a quarterly report on temporary agricultural worker (H-2A) performance data by state and company.

USCIS said it will continue to add more data sets to the webpage in the future, which is available here.

Back to Top

8. Member News

Charles Kuck was quoted on Bloomberg on July 19, 2011. Commenting on Georgia’s new immigration law and related Enforcement Review Board, unique to Georgia, which was created to ensure compliance and impose penalties, Mr. Kuck said, “This is a radical privatization of government power. There was no evidence presented, not even anecdotal evidence, that there was a problem that needed to be solved.” He likened the new board to a “mini-McCarthy panel.” The article is available here.

Angelo Paparelli has posted several new blog entries: “Revenue-Raising Immigration: The $$$ Visa,” and “Race to the Work Permit: Revitalizing Depressed American Cities Through State Immigration Initiatives.”

Back to Top

9. Government Agency Links

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

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

Back to Top

Headlines:

1. ICE To Audit 1,000 Employers Nationwide for I-9 Violations – The new actions bring the FY 2011 I-9 audit total to 2,338, surpassing the FY 2010 record.

2. USCIS Summarizes Stakeholder Engagement on L-1B Interpretation of ‘Specialized Knowledge’ – USCIS released an executive summary on the L-1B nonimmigrant classification with respect to interpretation of the term “specialized knowledge.”

3. House Judiciary Committee Approves Bill To Reauthorize Temporary Nurse Program – The committee approved a bill that would reauthorize for an additional three years the H-1C temporary visa program for nurses in health professional shortage areas.

4. Senate Holds Hearing on DREAM Act of 2011 – The Senate Subcommittee on Immigration, Refugees and Border Security held a hearing on the Development, Relief, and Education for Alien Minors (DREAM) Act of 2011 on June 28, 2011.

5. Democrats Reintroduce Comprehensive Immigration Reform Bill – Among other things, the bill would mandate the use of an employment verification system, establish a federal commission on immigration, and offer an earned path to citizenship for undocumented people already in the United States.

6. Sen. Lamar Smith Introduces Mandatory E-Verify Bill – The bill seems likely to pass the House and has already been endorsed by key business associations.

7. DOS Speaks on J-1 Summer Work Travel Interim Final Rule – The Department spoke about the new regulatory amendments that take effect July 15, 2011.

8. USCIS, Mississippi Implement New E-Verify Tool – USCIS launched a new feature that allows its E-Verify program to validate the authenticity of Mississippi driver’s licenses used by employees as I-9 identity documents.

9. North Carolina Governor Signs E-Verify Bill – The law mandates that counties, cities, and employers with at least 25 employees use E-Verify to verify the work authorization of new hires, excluding certain seasonal temporary employees.

10. ABIL Global: The EU Blue Card and the Dutch Knowledge Migrant Scheme; New Netherlands Legislation – This article compares the European Union Blue Card with the Dutch Knowledge Migrant Scheme, and summarizes several new pieces of legislation.

11. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience for the July 6 webinar includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.

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

Details:

1. ICE To Audit 1,000 Employers Nationwide for I-9 Violations

U.S. Immigration and Customs Enforcement (ICE) reported that it is auditing approximately 1,000 U.S. employers, of a range of sizes and in every state, to ensure compliance with I-9 employment authorization verification procedures. ICE has not specified which companies are affected, but it is expected to be focusing on critical sectors, to include agriculture and food; banking and finance; chemical; commercial facilities; commercial nuclear reactors, materials and waste; dams; defense industrial base; drinking water and water treatment systems; emergency service; energy; government facilities; information technology; national monuments and icons; postal and shipping; public health and health care; telecommunications; and transportation systems.

It was reported that the new actions bring the fiscal year 2011 I-9 audit total to 2,338, surpassing the fiscal year 2010 record of 2,196.

Back to Top

2. USCIS Summarizes Stakeholder Engagement on L-1B Interpretation of ‘Specialized Knowledge’

On June 13, 2011, U.S. Citizenship and Immigration Services (USCIS) launched “Records and Information from DMVs for E-Verify (RIDE),” a new feature that allows the agency’s E-Verify program to validate the authenticity of Mississippi driver’s licenses used by employees as Form I-9 identity documents.

More than 80 percent of employees present driver’s licenses to establish their identities when undergoing the I-9 employment authorization verification process. By enabling E-Verify to compare driver’s license data against state records, USCIS said, RIDE will improve E-Verify’s accuracy and help combat document fraud while observing safeguards to protect employees’ personal data. “RIDE helps combat document fraud by enabling E-Verify to confirm the authenticity of an additional identity document,” USCIS said. For example, previously, if an employee presented a driver’s license to establish his or her identity and a Social Security card to establish his or her authorization to work, E-Verify would only have been able to confirm the validity of the Social Security card. RIDE enables E-Verify employers in Mississippi to confirm the validity of both documents.

The new E-Verify RIDE feature builds on existing technology and infrastructure that the Mississippi Department of Public Safety (MDPS) and other state public safety departments use in conjunction with the American Association of Motor Vehicle Administrators. Mississippi is the first state to partner with USCIS to implement RIDE.

The U.S. House of Representatives Committee on the Judiciary approved a bill (H.R. 1933) on June 23, 2011, to help hospitals in inner-city neighborhoods and rural areas that have difficulty in attracting nurses. Specifically, the bill would reauthorize for an additional three years the H-1C temporary visa program that allows foreign nurses to come to the U.S. to work in health professional shortage areas. The bill was reported favorably to the House floor by voice vote.

The prior H-1C program allowed 500 foreign nurses per year to work in the United States. H.R. 1933 would reduce that number to 300 per year. The bill would benefit about 14 hospitals around the country.

House Judiciary Committee Chairman Lamar Smith (R-Tex.), the bill’s sponsor, praised the Committee vote: “A number of American hospitals have great difficulty attracting nurses. These include hospitals that serve mostly poor patients in inner-city neighborhoods and some hospitals in rural areas. For example, St. Bernard Hospital in Chicago is the only remaining hospital in an area of over 100,000 people and almost all of its patients live in poverty. St. Bernard almost closed its doors in 1992, primarily because of its inability to attract registered nurses. I introduced H.R. 1933 to help St. Bernard and other similar hospitals. The bill reauthorizes the H-1C program for an additional three years. Just as nurses ensure care for the sick, the H-1C program ensures continued care for patients in inner-city and rural communities.”

The Senate Subcommittee on Immigration, Refugees and Border Security held a hearing on the Development, Relief, and Education for Alien Minors (DREAM) Act of 2011 on June 28, 2011. Sen. Dick Durbin (R-Ill.) opened the hearing. Witnesses included Janet Napolitano, Secretary of the Department of Homeland Security; Arne Duncan, Secretary of the Department of Education; Dr. Clifford Stanley, Under Secretary of Defense for Personnel and Readiness; Ola Kaso, a DREAM Act student; Lt. Col. Margaret Stock, and Steven Camarota, Director of Research for the Center for Immigration Studies.

Secretary Napolitano said the Obama administration “strongly supports the DREAM Act.” She noted that in the closing days of the 111th Congress, the DREAM Act passed the House of Representatives with bipartisan support and fell a few votes short in the Senate. She commended Sen. Durbin and the 34 co-sponsors who have signed onto the bill thus far. She said the DREAM Act would ” allow the Department to devote a greater portion of limited DHS resources to removing individuals who actually pose a risk to public safety or security.” She said the DREAM Act would do this “by providing a firm but fair way for individuals brought into our country as children – through no fault of their own – to obtain legal status by pursuing higher education, or by serving in the U.S. Armed Forces for the country where they have grown up and which they consider their home.”

She noted that, as introduced in the Senate, the DREAM Act “establishes a rigorous process for those who entered the United States illegally as children to obtain conditional permanent resident status by proving that they meet several strict requirements.” Those applying for conditional permanent resident status, she said, would also need to submit biometric and biographic data and undergo security and law enforcement background checks and a medical examination. Without the DREAM Act, Secretary Napolitano said, “young people will continue to be caught up in the immigration removal system, siphoning resources away from other, more pressing needs.” She said that it does not make sense from a law enforcement or public safety perspective “to devote limited enforcement resources on young people who pose no threat to public safety, who were brought to this country illegally by no fault of their own and have grown up here, and who want to contribute to our country by serving in the military or going to college.”

Sen. Robert Menendez (D-N.J.) and six other Democrats reintroduced the Comprehensive Immigration Reform Act of 2011 (S. 1258) on June 22, 2011, a bill that would mandate the use of an employment verification system, establish a federal commission on immigration, and offer an earned path to citizenship for undocumented people already in the United States.

The 679-page bill is similar to legislation introduced by Sen. Menendez and other Democrats in September 2010. Senate Majority Leader Harry Reid (D-Nev.), along with Sens. Patrick Leahy (D-Vt.), Dick Durbin (D-Ill.), Charles Schumer (D-N.Y.), and Kirsten Gillibrand (D-N.Y.), co-sponsored the legislation. The bill includes measures to strengthen border security, enhance worksite enforcement of immigration laws, and requirements that the estimated 11 million undocumented people in the U.S. register with the government, pay taxes, learn English, pay a fine, pass a background check, and wait in line for permanent residence.

The bill also includes a mandatory employment verification system, and enforcement measures such as additional resources for the Border Patrol; expanded penalties for passport and document fraud; new requirements for the Department of Homeland Security to track entries and exits at the border; rules governing detention to ensure that U.S. citizens are not unlawfully detained; and new criminal penalties for fraud and misuse of Social Security numbers.

House Judiciary Committee Chairman Lamar Smith (R-Tex.) recently introduced the “Legal Workforce Act” (H.R. 2164), a bill that would require all businesses to verify the legal status of workers using the online E-Verify system. The bill seems likely to pass the House and has already been endorsed by key business associations, including the U.S. Chamber of Commerce, the National Restaurant Association, the National Association of Home Builders, and the National Federation of Independent Business.

Opponents of the bill argue that there are not enough U.S. workers available to fill the estimated 8 million jobs held by undocumented workers, 90 percent of which are non-agricultural. Statements from SEIU, the National Immigration Law Center, and others echoed the idea that an E-Verify mandate without a path to legalization for undocumented workers already in the United States would undermine the U.S. economy.

The text of the bill is available at http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.2164:.

Back to Top

7. DOS Speaks on J-1 Summer Work Travel Interim Final Rule

On June 20, 2011, a Department of State spokesperson answered a question about an interim final rule, effective July 15, 2011, that amends regulations on the J-1 Summer Work Travel (SWT) program. The spokesperson noted that given the size of the program, with approximately 120,000 college and university student participants in 2010, the Department has decided to “enhance safeguards,” including:

• A pilot program for six countries (Belarus, Bulgaria, Moldova, Romania, Russia, and Ukraine) aimed at thwarting the potential for abuse of summer work travel participants who come from those countries; and new program-wide regulations designed to strengthen and clarify current program oversight and administration requirements
• A special e-mail address and a toll-free telephone number, available 24 hours per day and 7 days per week, to enable students to have ready, direct contact with the Department about program complaints or issues
• On June 13, 2011, U.S. Citizenship and Immigration Services (USCIS) launched “Records and Information from DMVs for E-Verify (RIDE),” a new feature that allows the agency’s E-Verify program to validate the authenticity of Mississippi driver’s licenses used by employees as Form I-9 identity documents.More than 80 percent of employees present driver’s licenses to establish their identities when undergoing the I-9 employment authorization verification process. By enabling E-Verify to compare driver’s license data against state records, USCIS said, RIDE will improve E-Verify’s accuracy and help combat document fraud while observing safeguards to protect employees’ personal data. “RIDE helps combat document fraud by enabling E-Verify to confirm the authenticity of an additional identity document,” USCIS said. For example, previously, if an employee presented a driver’s license to establish his or her identity and a Social Security card to establish his or her authorization to work, E-Verify would only have been able to confirm the validity of the Social Security card. RIDE enables E-Verify employers in Mississippi to confirm the validity of both documents.The new E-Verify RIDE feature builds on existing technology and infrastructure that the Mississippi Department of Public Safety (MDPS) and other state public safety departments use in conjunction with the American Association of Motor Vehicle Administrators. Mississippi is the first state to partner with USCIS to implement RIDE.

  North Carolina Governor Beverly Purdue signed HB 36 into law on June 23, 2011. The new law mandates that counties, cities, and employers with at least 25 employees use E-Verify to verify the work authorization of new hires. The law does not apply to seasonal temporary employees who are employed for 90 or fewer days during a consecutive 12-month period.

  The law specifies that the Commissioner of Labor may subpoena employment records relating to “the recruitment, hiring, employment, or termination policies, practices, or acts of employment” as part of an investigation of a valid complaint.

  The text of the ratified bill is available at http://www.ncga.state.nc.us/Sessions/2011/Bills/House/HTML/H36v7.html.

Back to Top

10. ABIL Global: The EU Blue Card and the Dutch Knowledge Migrant Scheme; New Netherlands Legislation

EU Blue Card and Dutch Migrant Scheme

The European Union (EU) Blue Card is a residence and work permit for highly skilled non-EU/EER nationals, so-called third-country nationals. The EU Blue Card does not provide full access to the EU labor market as such, but only to the labor market of the EU Member State that has issued the EU Blue Card.

The implementation date of the European Directive on the EU Blue Card (2009/50/EG) was June 19, 2011. The Netherlands has implemented the EU Blue Card in the Dutch Immigration regulations.

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, and each has advantages, disadvantages, and limits.

A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies:

• Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
• Immigration enforcement actions in 2010. The Department of Homeland Security’s Office of Immigration Statistics has published “Immigration Enforcement Actions: 2010.” The short annual report, which presents information on the apprehension, detention, return, and removal of foreign nationals during 2010, notes, among other things, that DHS returned 476,000 foreign nationals to their countries of origin in 2010 without a removal order. Mexican nationals accounted for 83 percent of the 516,992 aliens apprehended in 2010. The next leading countries were Guatemala, El Salvador, and Honduras. Those four countries accounted for 94 percent of all apprehensions. The report is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement-ar-2010.pdf.Stories from Cuba. NAFSA: Association of International Educators has launched a website, “Connecting Our World,” and has posted a collection of stories from Cuba pursuant to the new expansion of U.S. academic travel to Cuba. The interactive site asks readers to share stories from their travels and studies in Cuba. The stories collected so far are available at http://www.connectingourworld.org/?page_id=2088.

Back to Top

13. Member News

Robert Loughran (bio: http://www.abil.com/lawyers/lawyers-loughran.cfm?c=US) was quoted in the June 23, 2011, edition of the Texas Tribune. Commenting on the potential unintended effects of state bills and a recent ICE memo on detaining and removing immigration status violators from the U.S., Mr. Loughran noted, “Once you detain someone you have to take action on that file. And very few people have the courage to stand up and do the release. I have specifically seen cases and worked on cases where the government has been unable to articulate what its concern or danger is, and you cannot get a single officer to put a signature on a release.” He said that could lead to non-offenders and even witnesses to crimes being held for weeks or even years, which could also swell jail populations and cost cities and counties millions in detention costs. The article is available at http://www.texastribune.org/texas-legislature/82nd-legislative-session/students-federal-memo-complicate-sanctuary-cities/.

Mr. Loughran has been selected for inclusion in the 2011 edition of Texas’ Best Lawyers. Attorneys listed in this guide are only those attorneys listed in The Best Lawyers in America.  Inclusion in The Best Lawyers in America is based entirely on peer review. The attorneys are asked, “If you could not handle a case yourself, to whom would you refer it?”  According to his peers, Mr. Loughran is the attorney on whom they would depend for matters of immigration law.

Mr. Loughran has been selected to be a presenter at the Alliance of Business Immigration  Lawyers (ABIL) Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals. Mr. Loughran will provide his expertise regarding how to successfully navigate the back end of the EB-5 process for both individual investors and regional centers. The webinar will be held August 16, 2011, at 3 p.m. EST. For more information, contact Lauren Anderson at lauren@abil.com or visit http://abil.com.

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: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Headlines:

1. USCIS Announces Cap Count – USCIS announced the cap count as of May 20, 2011.

2. USCIS Proposes EB-5 Changes; Accepting Comments Until June 17 – USCIS has proposed significant changes to the administration of the EB-5 immigrant investor program’s intake and review process.

3. USCIS Launches ‘I-9 Central’ Online – The website provides employers and employees access to resources, tips, and guidance on completing the I-9 and understanding the I-9 process.

4. ICE Adds 50 Degree Programs to STEM List – Students who graduate with one of the newly expanded STEM degrees can remain for an additional 17 months on an OPT STEM extension.

5. USCIS Fully Implements Secure Mail Initiative – SMI provides applicants the ability to track the status of their documents with USPS tracking information, and faster delivery.

6. Employment Second Preference Visa Cut-Off Date Advances Significantly for June – The same cut-off date (October 15, 2006) applies to both the China and India employment second preference in June; other second preference categories are Current.

7. USCIS Announces FY 2011 H-2B Cap Count – As of May 6, 2011, USCIS had receipted 27,173 petitions toward the 33,000 H-2B cap for the second half of FY 2011.

8. USCIS Announces FY 2011 H-2B Cap Count – As of May 6, 2011, USCIS had receipted 27,173 petitions toward the 33,000 H-2B cap for the second half of FY 2011.

9. EB-5 Quarterly Stakeholder Meeting Announced – The next engagement will take place via teleconference on June 30, 2011, at 1 p.m. (Eastern Time).

10. EB-5 Quarterly Stakeholder Meeting Announced – The next engagement will take place via teleconference on June 30, 2011, at 1 p.m. (Eastern Time).

11. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.

12. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.

13. ABIL Global: Changes to Canada’s Temporary Foreign Worker Program – Much-anticipated changes to Canada’s Temporary Foreign Worker Program took effect on April 1, 2011, including new safeguards to better protect temporary foreign workers and improvements to the program.

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

15. Member News – Member News

16. Government Agency Links – Government Agency Links

Details:

1. USCIS Announces Cap Count

U.S. Citizenship and Immigration Services (USCIS) has announced that as of May 20, 2011, approximately 12,300 H-1B cap-subject petitions were receipted. Additionally, USCIS receipted 8,500 H-1B petitions for workers with advanced degrees. The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD.
Back to Top

2. USCIS Proposes EB-5 Changes; Accepting Comments Until June 17

U.S. Citizenship and Immigration Services (USCIS) has proposed significant changes to the administration of the EB-5 immigrant investor program’s intake and review process. USCIS will accept comments until June 17, 2011, via e-mail to opefeedback@uscis.dhs.gov.

USCIS is proposing three fundamental changes to the way it processes certain regional center filings. First, USCIS proposes to accelerate its processing of applications for “job-creating projects that are fully developed and ready to be implemented.” USCIS will also give these EB-5 applicants and petitioners the option to request Premium Processing Service, which guarantees processing within 15 calendar days for an additional fee.

Second, USCIS proposes the creation of new specialized intake teams with expertise in economic analysis and the EB-5 program requirements. EB-5 regional center applicants will be able to communicate directly with the specialized intake teams via e-mail to streamline the resolution of issues and address questions or needs related to their applications.

Third, USCIS proposes to convene an expert Decision Board to render decisions regarding EB-5 regional center applications. The Decision Board will be composed of an economist and adjudicators and will be supported by legal counsel.

This proposal will be online until June 17, 2011, for public comment—providing stakeholders an opportunity to offer feedback on the proposed changes to the administration of the EB-5 Program.

USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a4b57b52e5800310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.  The proposal is available at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Operartional%20Proposals%20for%20Comment/EB-5-Proposal-18May11.pdf.  For more information on how to submit comments, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f19102992a2ac210VgnVCM100000082ca60aRCRD&vgnextchannel=f19102992a2ac210VgnVCM100000082ca60aRCRD.

Back to Top

3. USCIS Launches ‘I-9 Central’ Online

U.S. Citizenship and Immigration Services (USCIS) has launched “I-9 Central,” a new online resource center dedicated to the most frequently accessed form on USCIS.gov: Form I-9, Employee Eligibility Verification. The website provides employers and employees access to resources, tips, and guidance on completing the I-9 and understanding the I-9 process.

I-9 Central includes sections on employer and employee rights and responsibilities, step-by-step instructions for completing the form, and information on acceptable documents for establishing identity and employment authorization. The site also includes a discussion of common mistakes to avoid when completing the form, guidance on how to correct errors, and answers to employers’ recent questions about the I-9 process.

The launch of I-9 Central follows the introduction of other USCIS employment-related resources, including E-Verify Self Check, a service launched in March that allows workers and job-seekers in the United States to check their own employment eligibility status online, and an updated “Handbook for Employers: Instructions for Completing Form I-9 (M-274),” published in early 2011. I-9 Central complements existing I-9 resources, including the current Form I-9 Web page and the form’s instructions. USCIS also offers free webinars on completing the I-9.

I-9 Central is available at http://www.uscis.gov/I-9central. USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=738699e7c96ef210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

4. ICE Adds 50 Degree Programs to STEM List

U.S. Immigration and Customs Enforcement (ICE) has added 50 science, technology, engineering, and math (STEM) degree programs to the list of those that qualify eligible graduates on student visas for an Optional Practical Training (OPT) extension. By expanding the list of STEM degrees, ICE said the Obama administration “is helping to address shortages in certain high-tech sectors of talented scientists and technology experts.”

Under the OPT program, foreign students who graduate from U.S. colleges and universities are able to remain in the U.S. and receive training through work experience for up to 12 months. Students who graduate with one of the newly expanded STEM degrees can remain for an additional 17 months on an OPT STEM extension. The employer must be enrolled in E-Verify.

The announcement is available at http://m.ice.gov/news/releases/1105/110512washingtondc2.htm?f=m. The expanded list of STEM-designated degrees is available at http://www.ice.gov/doclib/sevis/pdf/stem-list-2011.pdf.

Back to Top

5. USCIS Fully Implements Secure Mail Initiative

U.S. Citizenship and Immigration Services (USCIS) recently announced that it has fully implemented the Secure Mail Initiative (SMI), which uses U.S. Postal Service (USPS) priority mail with delivery confirmation to deliver certain immigration documents.

Under a partnership between USCIS and the USPS, the SMI enables USCIS to confirm delivery of permanent resident cards and documents pertaining to travel and employment authorization. SMI provides applicants the ability to track the status of their documents with USPS tracking information, and USPS says they can expect prompt delivery. Those who receive notices of approval may contact USCIS’s Customer Service Center at 800-375-5283 to request tracking information for their documents. USCIS customer service representatives will provide callers with their USPS tracking number and current USPS delivery status.

USCIS said that applicants should wait at least two weeks after receiving their approval notice before calling for information regarding their cases. When requesting tracking information, callers must also provide information from the receipt notice they received when they submitted their initial application. After receiving the tracking number from the USCIS Customer Service Center, applicants may track the delivery status by visiting the USPS website at http://www.usps.com and entering the USPS tracking number into the “Track & Confirm” field.

USCIS first piloted the initiative in July 2008, delivering all re-entry permits and refugee travel documents using USPS priority mail with delivery confirmation. USCIS has also used SMI processes since July 2009 for re-mailing all permanent residence cards, as well as employment authorization and travel documents returned by USPS to USCIS as undeliverable.

USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=79ecdd8ae14af210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

6. Employment Second Preference Visa Cut-Off Date Advances Significantly for June

The previous Visa Bulletin for May 2011, from the State Department’s Visa Office, noted that § 202(a)(5) of the Immigration and Nationality Act (INA) prescribes rules for the use of potentially “otherwise unused” employment numbers. During May, the India employment second preference cut-off date governed the use of such numbers, because India had reached its employment second preference annual limit.

Since October 2010, the latest Visa Bulletin for June 2011 explains, there has been heavy demand by applicants “upgrading” their status from employment third to employment second preference. The rapid forward movement of the India employment second preference cut-off date in May had the potential to greatly increase such demand. Therefore, the Visa Office had delayed determination of the June cut-off dates to monitor this demand. The Visa Office has since determined that new “upgrade” demand has been minimal; this has allowed the employment second preference cut-off date governing the use of the § 202(a)(5) numbers to advance significantly for June. The same cut-off date (October 15, 2006) applies to both the China and India employment second preference in June. Other second preference categories are Current. The Visa Bulletin for June notes that all of the “otherwise unused” numbers must be provided strictly in priority date order regardless of the applicant’s chargeability.

Cut-off date movement for upcoming months cannot be guaranteed, the June Visa Bulletin notes, and because of the variables involved, “no assumptions should be made until the dates are formally announced.” Should there be a sudden or significant increase in India and China employment second preference demand, it may be necessary to slow, stop, or even retrogress that cut-off date as the end of fiscal year 2011 approaches.

The Visa Bulletin for June 2011 is available at http://www.travel.state.gov/visa/bulletin/bulletin_5452.html.

Back to Top

7. USCIS Announces FY 2011 H-2B Cap Count

USCIS announced that as of May 6, 2011, it had receipted 27,173 petitions toward the 33,000 H-2B cap for the second half of fiscal year (FY) 2011. The count included 24,420 approved petitions and 2,753 pending.

A chart showing the updated numbers for the first half and second half of FY 2011 is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=356b6c521eb97210VgnVCM100000082ca60aRCRD&vgnextchannel=d1d333e559274210VgnVCM100000082ca60aRCRD.

Back to Top

8. USCIS Announces FY 2011 H-2B Cap Count

USCIS announced that as of May 6, 2011, it had receipted 27,173 petitions toward the 33,000 H-2B cap for the second half of fiscal year (FY) 2011. The count included 24,420 approved petitions and 2,753 pending.

A chart showing the updated numbers for the first half and second half of FY 2011 is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=356b6c521eb97210VgnVCM100000082ca60aRCRD&vgnextchannel=d1d333e559274210VgnVCM100000082ca60aRCRD.

Back to Top

9. EB-5 Quarterly Stakeholder Meeting Announced

U.S. Citizenship and Immigration Services’ Office of Public Engagement and Service Center Operations Directorate has issued a public invitation for participants to discuss the EB-5 immigrant investor program. The upcoming meeting will take place via teleconference on June 30, 2011, at 1 p.m. (Eastern Time). The deadline to submit agenda items was May 27. The next meeting after that will take place on September 15, 2011, via teleconference and also in person in Washington, DC, and the deadline to submit agenda items for the latter meeting is August 15, 2011.

Each meeting will be an opportunity for USCIS to share information on the EB-5 program and address stakeholders’ related topics of interest. USCIS noted that there will be an open forum for questions and answers at each of these engagements, but the agency will not address case-specific inquiries.

To respond to this invitation, e-mail the Office of Public Engagement at public.engagement@dhs.gov by June 29, 2011, and reference the following in the subject line of your e-mail: “EB-5 – Phone”. Include your full name and the organization you represent, if any, in the body of the e-mail.

The meeting invitation is available at http://www.uscis.gov/USCIS/Outreach/Upcoming%20National%20Engagements/National%20Engagement%20Pages/2011%20Events/June%202011/EB_5_Engagement_June_2011.pdf.

Back to Top

10. EB-5 Quarterly Stakeholder Meeting Announced

U.S. Citizenship and Immigration Services’ Office of Public Engagement and Service Center Operations Directorate has issued a public invitation for participants to discuss the EB-5 immigrant investor program. The upcoming meeting will take place via teleconference on June 30, 2011, at 1 p.m. (Eastern Time). The deadline to submit agenda items was May 27. The next meeting after that will take place on September 15, 2011, via teleconference and also in person in Washington, DC, and the deadline to submit agenda items for the latter meeting is August 15, 2011.

Each meeting will be an opportunity for USCIS to share information on the EB-5 program and address stakeholders’ related topics of interest. USCIS noted that there will be an open forum for questions and answers at each of these engagements, but the agency will not address case-specific inquiries.

To respond to this invitation, e-mail the Office of Public Engagement at public.engagement@dhs.gov by June 29, 2011, and reference the following in the subject line of your e-mail: “EB-5 – Phone”. Include your full name and the organization you represent, if any, in the body of the e-mail.

The meeting invitation is available at http://www.uscis.gov/USCIS/Outreach/Upcoming%20National%20Engagements/National%20Engagement%20Pages/2011%20Events/June%202011/EB_5_Engagement_June_2011.pdf.

Back to Top

11. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, but each has advantages, disadvantages, and limits.

A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies:

• Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
• Session 2: EB-5 regional center applications and project pre-approval petitions, to be held July 6 at 3 p.m. (ET). Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
• Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 p.m. (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before each session, as well as a recording of the webinar. The cost is $89 for an individual session or $249 for all three sessions, live or recorded. To register, go to: https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, contact Lauren Anderson at lauren@abil.com or visit http://abil.com.

Back to Top

12. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, but each has advantages, disadvantages, and limits.

A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies:

• Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
• Session 2: EB-5 regional center applications and project pre-approval petitions, to be held July 6 at 3 p.m. (ET). Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
• Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 p.m. (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before each session, as well as a recording of the webinar. The cost is $89 for an individual session or $249 for all three sessions, live or recorded. To register, go to: https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, contact Lauren Anderson at lauren@abil.com or visit http://abil.com.

Back to Top

13. ABIL Global: Changes to Canada’s Temporary Foreign Worker Program

On April 1, 2011, much-anticipated changes to Canada’s Temporary Foreign Worker Program took effect. The main objectives are to introduce safeguards to better protect temporary foreign workers (TFWs) and improvements to the program to ensure that it continues to be fair to employers, and to maintain its focus on alleviating temporary labor shortages.

Genuineness of the Job Offer

Under these new rules, foreign nationals seeking to work in Canada will be better protected from exploitation through a more rigorous assessment of the genuineness of the job offer.

Four factors will be considered as part of the assessment of genuineness:

• the employer must be actively engaged in the business;
• the job offer is consistent with the needs of the employer;
• the employer is able to fulfill the terms of the job offer; and
• the employer has complied with the laws regulating employment in the province where the worker is to be employed.

In instances where a Labour Market Opinion (LMO) is required, this assessment will be completed by Human Resources and Skills Development Canada before the LMO is to be issued, whereas for jobs exempted from LMOs, the assessment will be completed by Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency, upon request for a work permit.

Two-Year Ban for Noncompliance

Officers will have the authority to undertake a “substantially the same” (STS) assessment of whether an employer has, in the last two years, provided wages, working conditions, and an occupation as promised in a past job offer.

The legislation imposes a two-year prohibition from using the TFWP for employers found to have failed an STS assessment. Unless reasonable justification is provided or corrective action is taken, employers may face:

• the denial of work permit applications for any foreign national offered employment by that employer;
• becoming ineligible to hire TFWs for 2 years; and
• having their name displayed on CIC’s public website.

Maximum Period of Work in Canada

Many foreign workers will be subject to a four-year “cumulative duration” limit on the length of time they may work in Canada.

However, this regulation is not retroactive in that the commencement date for this four-year period is April 1, 2011, regardless of how long the foreign worker has already been in Canada. Therefore, the earliest date that a foreign worker could reach the four-year cumulative duration is April 1, 2015.

After a TFW has reached his or her four-year cumulative duration limit, the TFW will not be granted another work permit for another four years.

The four-year limit will not apply to certain categories of TFWs, including TFWs in managerial or professional occupations, TFWs who have applied for permanent residence and have progressed to a certain specified stage in the processing, TFWs employed in Canada under an international agreement (such as the North American Free Trade Agreement), and TFWs who are exempt from the LMO process.

Back to Top

14. New Publications and Items of Interest

Chamber of Commerce immigration myths and facts:  The U.S. Chamber of Commerce has released a pamphlet, “Immigration Myths and Facts,” to refute seven of the most common myths about immigrants coming to the U.S. The myths related to the areas of jobs, wages, taxes, population, crime, integration, and welfare. The Chamber’s compilation “shows that immigrants significantly benefit the U.S. economy by creating new jobs, and complementing the skills of the U.S. native workforce, with a net positive impact on wage rates overall.”

The Chamber’s seven myths and facts, for which statistics and examples are provided, include:

• Myth: Every job filled by an immigrant – especially an illegal immigrant – is a job that could be filled by an unemployed American. Fact: Immigrants typically do not compete for jobs with native-born workers and immigrants create jobs as entrepreneurs, consumers, and taxpayers.
• Myth: Immigrants drive down the wages of American workers. Fact: Immigrants give a slight boost to the wages of most Americans by increasing their productivity and stimulating investment.
• Myth: Immigrants will “over-populate” the United States. Fact: Immigrants will replenish the U.S. labor force as the Baby Boomers retire.
• Myth: Undocumented immigrants do not pay taxes. Fact: Undocumented immigrants pay billions of dollars in taxes each year, often for benefits they will never receive.
• Myth: Immigrants come to the United States for welfare benefits. Fact: Undocumented immigrants are not eligible for federal public benefit programs, and legal immigrants face stringent eligibility restrictions.
• Myth: Today’s immigrants are not assimilating into U.S. society. Fact: Today’s immigrants are buying homes and becoming U.S. citizens.
• Myth: Immigrants are more likely to commit crimes than U.S. natives. Fact: Immigration does not cause crime rates to rise and immigrants have lower incarceration rates than native-born Americans.

The announcement is available at http://www.uschamber.com/reports/immigration-myths-and-facts. The pamphlet is available at http://www.uschamber.com/sites/default/files/reports/16628_ImmigrationMythFacts_OPT.pdf.

E-Verify Spanish website launched:  U.S. Citizenship and Immigration Services has launched a Spanish version of its E-Verify website for employers and employees. Additional sections are planned soon. The Spanish-language site is available at http://www.dhs.gov/e-verify-espanol. The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=04db32802cbc8210VgnVCM100000082ca60aRCRD&vgnextchannel=04db32802cbc8210VgnVCM100000082ca60aRCRD.

Back to Top

15. Member News

Steven A. Clark (bio: http://www.abil.com/lawyers/lawyers-clark.cfm?c=US) will speak on a panel, “Issues in PERM Audits,” on June 16, 2011, at the American Immigration Lawyers Association’s annual conference in San Diego, California.

Laura Danielson (bio: http://www.abil.com/lawyers/lawyers-danielson.cfm?c=US) will speak on June 15, 2011, in San Diego, California, at the American Immigration Lawyers Association’s Global Forum on international sponsorship issues in work permit cases.

Kehrela Hodkinson (bio: http://www.abil.com/lawyers/lawyers-hodkinson.cfm?c=US) chaired the Alliance of Business Immigration Lawyers’ Global Mobility Seminar on May 5, 2011, and was Discussion Leader at the American Immigration Lawyers Association’s (AILA) Rome District conference in Frankfurt, “Immigration Issues Related to the Military” on May 13, 2011.

Ms. Hodkinson will be a moderator of the Consular Processing Roundtable at AILA’s Global Mobility Action Group Forum on June 15, 2011. She also will speak on Consular Processing: Worldwide Hot Spots, and on the Department of State Open Forum on June 17, 2011, at the American Immigration Lawyers Association’s annual conference in San Diego, California.

Mark Ivener (bio: http://www.abil.com/lawyers/lawyers-ivener.cfm?c=US) has written a new article, “Surprise Your Clients,” which is available at http://www.attorneyatwork.com/articles/surprise-your-clients/.

H. Ronald Klasko (bio: http://www.abil.com/lawyers/lawyers-klasko.cfm?c=US) will speak on a panel, “Recent Developments and Strategic Considerations in Dealing With Lawful Status and Unlawful Presence,” on June 16, 2011, at the American Immigration Lawyers Association’s annual conference in San Diego, California.

Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm?c=US) will speak on a panel, “Beyond Litigation: Advocating for Your Client Outside the Courtroom,” on June 17, 2011, at the American Immigration Lawyers Association’s (AILA) annual conference in San Diego, California.

Mr. Kuck has published a new article, “HB 87: The ‘Illegal Immigration Reform and Enforcement Act of 2011’ – Arizona-Style Legislation – What Does It Mean for You?”, available at http://www.immigration.net/hb87.

FosterQuan LLP, with the assistance of the American Immigration Council (AIC), recently announced the winners of the fourth annual Austin, Texas-area “Celebrate America” Creative Writing Contest. As the first place winner, 5th-grade student Avery Oh wrote an essay that was entered into the AIC’s regional competition. Winners from the latter competition are entered in the National Contest. The Austin winners were honored at a naturalization ceremony in Austin. The top three essayists met with Robert F. Loughran (bio: http://www.abil.com/lawyers/lawyers-loughran.cfm?c=US), a FosterQuan partner and ABIL member. The announcement is available at http://www.fosterquan.com/Firm/Celebrate_America_Austin_Area_Creative_Writing_Contest/winners2011/.

Sharon Mehlman will speak on a panel, “PERM Labor Certification: The Long and Winding Road to ‘PERM’ Residency and How to Get There,” on June 18, 2011, at the American Immigration Lawyers Association’s annual conference in San Diego, California.

Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) has published several new blog entries. “Immigration Lessons From the Fall of Strauss-Kahn” discusses the ramifications of recent allegations against the International Monetary Fund head from the perspective of an immigration lawyer. “Expansion of STEM Fields as an Example of Administrative Fixes for a Broken Immigration System” discusses the 17-month extension of Optional Practical Training for STEM (science, technology, engineering, and math) graduates, calling it “a good example of how the Administration can fix problems within our broken immigration system in the face of Congressional inaction.” See http://cyrusmehta.blogspot.com/.

Mr. Mehta also recently published an article, “Why Can’t a U.S. Branch of a Foreign Company Sponsor an Intracompany Transferee for a Green Card?” The article discusses the fact that although a U.S. branch of a foreign entity is authorized to sponsor an intracompany executive or manager for an L-1A nonimmigrant visa, when the same branch wishes to sponsor the individual for permanent residence through an I-140 immigrant visa petition, the USCIS Adjudicator’s Field Manual says “No.” The article is available at http://www.cyrusmehta.com/news.aspx?SubIdx=GAdmin201151384130.

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US) has posted a new blog entry, “Face-Off: Foreign Entrepreneurs vs. the Immigration Alligators – With Obama as Referee,” which discusses things President Obama could accomplish on immigration by executive action. The blog is available at http://www.nationofimmigrators.com/immigration-reform/faceoff-foreign-entrepreneurs-vs-the-immigration-alligators/index.html.

Bernard Wolfsdorf (bio: http://www.abil.com/lawyers/lawyers-wolfsdorf.cfm?c=US) will speak at the American Immigration Lawyers Association’s annual conference in San Diego on a panel regarding advanced E nonimmigrant investor issues on Saturday, June 18, 2011, from 1:50 p.m. to 2:40 p.m.

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) will speak at the American Immigration Lawyers Association’s annual conference in San Diego on a panel regarding advanced EB-5 immigrant investor issues, on Saturday, June 18, 2011, from 7:30 to 8:30 a.m.

Back to Top

16. Government Agency Links

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

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/bulletin/bulletin_1360.html

Back to Top

Headlines:

1. Feds Crack Down on Employers – In recent actions, the Criminal Division of the U.S. Attorney’s Office in Washington, DC, is investigating Chipotle Mexican Grill about hiring undocumented workers at its 1,092 restaurants; owners of another establishment were arrested for violations related to employing undocumented workers and not paying taxes on them.

2. House Holds Hearing on E-Verify – A hearing in April focused on identity fraud as a continuing concern in the E-Verify system.

3. Senator Asks for Investigation of B-1 Visa Program – Sen. Grassley questioned the “B-1 in lieu of H-1B” policy currently in place, and referenced a formal complaint against Infosys by a U.S. employee.

4. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.

5. ABIL Global Mobility Conference – This half-day free conference will help to guide professionals involved in global mobility to be better equipped when conducting business transactions in another country.

6. ABIL Global: Canada and Medical Inadmissibility – As the case law is evolving in this area, great care must be taken by foreign nationals interested in coming to Canada who suffer from significant medical problems.

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

8. Member News – Member News

9. Government Agency Links – Government Agency Links

Details:

1. Feds Crack Down on Employers

In an investigation of Chipotle Mexican Grill Inc., the Criminal Division of the U.S. Attorney’s Office in Washington, DC, asked Chipotle on April 13, 2011, for documentation related to hiring issues at its 1,092 restaurants. U.S. Immigration and Customs Enforcement (ICE) had recently audited Chipotle’s records in several areas, resulting in the company’s firing of at least 490 workers.

In another case, federal agents arrested the owners and an outside bookkeeper for Chuy’s Mesquite Broiler and detained 40 suspected undocumented workers at 15 locations in California and Arizona. The federal indictment charged the owners with employing about 360 undocumented workers and keeping two payrolls, one for the undocumented workers, for whom no taxes were paid, and another for workers with employment authorization.

For more information on recent ICE enforcement operations, see http://www.ice.gov/news/.

Back to Top

2. House Holds Hearing on E-Verify

A hearing on April 14, 2011, focused on identity fraud as a continuing concern in U.S. Citizenship and Immigration Services’ E-Verify system for verification of work authorization.

Rep. Sam Johnson (R-Tex.), chairman of the House Ways and Means Committee’s Subcommittee on Social Security, noted in his opening statement that under the Internet-based E-Verify system, an employer first enters information from the Form I-9. Verification requests are transmitted to the Social Security Administration (SSA), which checks whether the worker’s information matches the SSA’s records; those involving noncitizens are then routed to the Department of Homeland Security (DHS). If a worker’s information does not match these agencies’ databases, a tentative “non-confirmation” (TNC) notice is sent and the worker must contact either SSA or DHS “to present needed documentation in order to keep their job.”

Rep. Johnson cited a Government Accountability Office (GAO) study (http://www.gao.gov/new.items/d11146.pdf) finding that the E-Verify system had made progress in improving accuracy, with immediate confirmations rising to 97.4 percent. He noted, however, that the GAO said the system was still vulnerable to unauthorized workers and unscrupulous employers presenting stolen or borrowed documents for the purpose of identity fraud.

Richard M. Stana, Director of Homeland Security and Justice for the GAO, testified that TNCs had been reduced but that the accuracy of E-Verify continues to be limited by both inconsistent recording of employees’ names and fraud. He said that about 0.3 percent of the total 2.6 percent (over 211,000 of newly hired employees) who received either a SSA or USCIS TNC were determined to be work-eligible after they contested a TNC and resolved errors or inaccuracies in their records. About 2.3 percent (about 189,000) received final nonconfirmations because their employment eligibility status remained unresolved. Mr. Stana noted that USCIS was unable to determine how many of those employees (1) were authorized to work but did not take action to resolve a TNC because they were not informed by their employers of their right to contest the TNC, (2) independently decided not to contest the TNC, or (3) were not eligible to work.

Among other things, Mr. Stana noted the GAO’s recommendation that USCIS could better position employees to avoid erroneous TNCs by disseminating information to employees on the importance of providing consistent name information and on how to record names consistently. USCIS said it began to distribute information at all naturalization ceremonies advising new citizens to update their records with SSA. USCIS also said it has commissioned a study, to be completed in the third quarter of fiscal year 2011, to determine how to enhance its name-matching algorithms. Mr. Stana said these were useful steps “but they do not fully address the intent of the [GAO’s] recommendation because they do not provide specific information to employees on how to prevent a name-related TNC.

In addition, Mr. Stana said identity fraud remains a challenge because employers may not be able to determine whether an employee’s documents are genuine, borrowed, or stolen. E-Verify also cannot detect cases in which an employer may be unscrupulously assisting unauthorized employees. Among other measures, USCIS has implemented a photo-matching tool for permanent residence cards, employment authorization documents, and passports. Mr. Stana noted that implementing biometric systems has its own set of challenges, such as cost and civil liberties considerations.

Mr. Stana noted that USCIS began implementing its “Self-Check” program in March 2011 to allow individuals to check their own work authorization status against SSA and DHS databases before applying for a job. Mr. Stana said the GAO found USCIS’s efforts to be a step in the right direction but insufficient “because, among other things, USCIS does not have operating procedures in place for USCIS staff to explain to employees what personal information produced the TNC or what specific steps they should take to correct the information.” Mr. Stana said the GAO also found that USCIS’s cost estimates for E-Verify may not be accurate.

The opening statement and hearing testimony are available from http://waysandmeans.house.gov/Calendar/EventSingle.aspx?EventID=234780.

Back to Top

3. Senator Asks for Investigation of B-1 Visa Program

Sen. Charles Grassley (R-Iowa) has asked the Departments of State and Homeland Security to investigate the B-1 visa program and its use by employers “to recruit foreign workers who are then not subject to the cap and the prevailing wage requirements of the H-1B program.” In a letter to Secretary of State Hillary Clinton and Secretary of Homeland Security Janet Napolitano, Grassley questioned the “B-1 in lieu of H-1B” policy currently in place. He wrote, “Under this low threshold [for the B-1 visa], a company could import workers via the B-1 business visitor visa and evade the H-1B visa cap and prevailing wage requirements that would otherwise apply to such workers so long as the workers could show that their paychecks were still coming from the foreign company.”

Sen. Grassley also referenced a formal complaint against Infosys by a U.S. employee that alleges Infosys management in India used the B-1 business visitor visa program to get around H-1B program restrictions. He said the complaint alleges that Infosys was importing foreign workers as B-1 business visitors under the guise of attending meetings rather than working for wages as employees of a U.S. company, which is forbidden under the statute and regulations governing the B-1 visa program.

Sen. Grassley has introduced legislation in previous Congresses on the H-1B and L visa programs and plans to introduce a bill again in the 112^th Congress.

Sen. Grassley’s letter to the Secretaries of State and Homeland Security is available at http://grassley.senate.gov/about/upload/Immigration-04-14-11-Grassley-letter-to-State-DHS-B-1-H-1B-visas.pdf.

Back to Top

4. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, but each has advantages, disadvantages, and limits.

A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies:

• Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
• Session 2: EB-5 regional center applications and project pre-approval petitions, to be held July 6 at 3 p.m. (ET). Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
• Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 p.m. (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

Back to Top

5. ABIL Global Mobility Conference

The Alliance of Business Immigration Lawyers’ (ABIL) Global Immigration Network will present a Global Mobility Conference in London, England, on Thursday, May 5, 2011, from 2 to 5 pm. This half-day free conference will help guide professionals involved in global mobility to be better equipped when conducting business transactions in another country. The conference will look at the following areas:

•  Compliance related to immigration and tax, as well as criminal liability
• Best practices in global mobility through a case study
• Global mobility trends and hot topics from multiple countries

The conference is presented by ABIL and co-sponsored by Baker Tilly International, a network of accountancy and business advisory firms. For more information, e-mail Lauren Anderson at lauren@abil.com.

Back to Top

6. ABIL Global: Canada and Medical Inadmissibility

Foreign nationals are usually inadmissible to Canada for having criminal records (including convictions for driving while intoxicated). Many, however, do not know that foreign nationals can also be inadmissible to Canada on health grounds if they are “likely to be a danger to public health or public safety” (very rare) or “might reasonably be expected to cause excessive demand on health or social services.”

Approximately 280,000 foreign nationals became Canadian permanent residents in 2010, each of whom was required to undergo a Canadian immigration medical examination before becoming a Canadian permanent resident. About 96,000 foreign students came to Canada and 182,000 foreign workers entered Canada in 2010, many of whom were required to have a medical examination.

Given that Canada has a socialized system of medicine where the provincial governments pay most medical costs, medical inadmissibility can be a real concern for those with health issues who want to immigrate to Canada.

In total, approximately 450,000 Canadian medical examinations are performed each year on foreign nationals. Of those medical examinations, less than one percent of the foreign nationals (and their family members) were held to be inadmissible on health grounds for a health condition that “might reasonably be expected to cause excessive demand on health or social services.”

In 2005, the Supreme Court of Canada held that the personal circumstances of each foreign national seeking to immigrate to Canada should be considered by the Canadian visa office and an individualized assessment undertaken when deciding whether there is likely to be excessive demand on social services.

As the case law is evolving in this area, great care must be taken by foreign nationals interested in coming to Canada who suffer from significant medical problems.

Back to Top

7. New Publications and Items of Interest

House hearing testimony on the H-1B program:  An article in Computerworld says that recent cables released by WikiLeaks include “anecdotes” about fraud in the H-1B visa process in countries such as Mexico, Libya, and Iceland that do not normally receive a lot of attention for it. Among other things, a cable sent two years ago from the U.S. Embassy in Mexico City refers to “persistent fraud problems” in the H-1B and L-1 visa programs, including applicants overstating experience, education, or future job responsibilities. The embassy also reportedly said that some individuals “may also set up shell companies as a means to live in the U.S.” The article is available at http://www.computerworld.com/s/article/9215855/WikiLeaks_cables_describe_H_1B_fraud_attempts.
Back to Top

8. Member News

Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm?c=US) recently posted a new blog entry on the HB 87 legislation in Georgia, the “Illegal Immigration Reform and Enforcement Act of 2011.” Among other things, the blog notes that provisions of HB 87 have “added a significant new burden to state agencies and local governments to ensure compliance with existing E-Verify rules, and place[d] additional expenses and compliance requirements on government contractors.” The blog is available at http://musingsonimmigration.blogspot.com/2011/04/what-hb-87-means-for-you-your-business.html.

Robert Loughran (bio: http://www.abil.com/lawyers/lawyers-loughran.cfm?c=US) was quoted in Bloomberg Businessweek regarding a hearing in the Texas legislature on April 13, 2011, on a variety of immigration enforcement bills: “It is not within your power to solve this tremendously complex problem. This remains a federally defined issue with plenty of case law to back that up. Absent a comprehensive solution to this problem across the United States, we are not solving the problem.”

Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) will speak on May 2, 2011, at the American Immigration Lawyers Association’s New York Chapter meeting, which will focus on PERM and recent BALCA decisions, including decisions related to alternative requirements, recruitment issues, post-recruitment/errors and emerging trends.

Ronald Klasko (bio: http://www.abil.com/lawyers/lawyers-klasko.cfm?c=US) and Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) will speak on a panel on May 10, 2011, at the annual meeting of “Invest In the USA” concerning EB-5 immigrant investor training materials that were recently released by U.S. Citizenship and Immigration Services (USCIS) pursuant to a Freedom of Information Act request filed by Mr. Klasko. For more information about the meeting or to attend, go to http://iiusadc510.eventbrite.com/.

Back to Top

9. Government Agency Links

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

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/bulletin/bulletin_1360.html

Back to Top