Headlines:

1. USCIS Begins Accepting H-1B Petitions – As of April 1, 2011, USCIS has begun accepting H-1B petitions subject to the FY 2012 cap of 65,000.

2. USCIS Launches E-Verify Self Check – This new voluntary service enables individuals to check their own employment eligibility status at no charge.

3. New Validation Instrument for Business Enterprises Giving Off Bad VIBE – Some attorneys have reported that the VIBE system, which is based on publicly available information, too often contains inaccuracies, is unreliable, and requires a significant effort to update.

4. USCIS Updates I-129 Instructions Re TARP – Additional requirements under the Employ American Workers Act no longer apply to any H-1B petition requesting an employment start date of February 17, 2011, or later.

5. ICE Announces Prison Term for Employing Undocumented Workers – A Missouri woman was sentenced to a year in prison for transporting, harboring, and hiring undocumented workers at the Chinese restaurant she managed.

6. DOL Issues Proposed Rule on H-2B Temporary Nonagricultural Employment – Among other things, the DOL is revisiting the use of attestations.

7. DHS Issues Interim Final Rule on Guam-Northern Marianas VWP – The rule clarifies the countries and geographic areas eligible for participation in the Guam-CNMI Visa Waiver Program.

8. USCIS Publishes Prevailing Wage Rates for H-2B Construction Workers on Guam – USCIS seeks comments on the system that the Governor of Guam is using to determine prevailing wage rates for construction occupations on Guam.

9. ABIL Global: United Kingdom Update: Tier 1 – The UK government is proposing various measures to reduce immigration and save public funds.

10. ABIL Global: United Kingdom Update: Tier 2 – The UK government is proposing various measures to reduce immigration and save public funds.

11. ABIL Webinar: U.S. Investment Visas and Green Cards for Foreign Nationals – This three-part Webinar series will help guide individual investors and others, as well as U.S. companies that want to attract foreign investors.

12. . Congress Passes ‘CIFAF’ Bill in Dead of Night on April 1 – The new “Comprehensive Immigration Reform April Fools” bill basically lets everyone in, then kicks them all out within 30 days.

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

14. Member News – Member News

15. Government Agency Links – Government Agency Links

---

Details:

1. USCIS Begins Accepting H-1B Petitions

As of April 1, 2011, U.S. Citizenship and Immigration Services (USCIS) has begun accepting H-1B petitions subject to the fiscal year (FY) 2012 cap of 65,000. Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted, not the date that the petition is postmarked.

USCIS will monitor the number of H-1B petitions received and will announce when the H-1B cap has been met. If USCIS receives more petitions than it can accept, it may on the date the cap is met (the “final receipt date”) randomly select the number of petitions that will be considered for final inclusion within the cap. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.

The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt from the cap. Certain other petitions also are exempt from the congressionally mandated cap. Exempt petitions include those for which the beneficiaries will work at:

• institutions of higher education or related or affiliated nonprofit entities;
• nonprofit research organizations; or
• governmental research organizations.

Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until December 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories for beneficiaries who will start work during FYs 2011 or 2012.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap do not count toward the H-1B cap. USCIS will continue to process petitions filed to:

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

In the last few years the H-1B cap has not been reached for several months. It will be interesting to see when the cap is reached this year, given the improving economy.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=31f803aea7ace210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

---

2. USCIS Launches E-Verify Self Check

U.S. Citizenship and Immigration Services (USCIS) launched “E-Verify Self Check” on March 21, 2011. The voluntary service enables individuals to check their own employment eligibility status at no charge. USCIS is releasing E-Verify Self Check in phases, with the first phase accessible only to users who maintain an address and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia, or the District of Columbia.

For more on E-Verify Self Check, including a link to the system, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=2ec07cd67450d210VgnVCM100000082ca60aRCRD&vgnextchannel=2ec07cd67450d210VgnVCM100000082ca60aRCRD.

A related blog and video are available at http://blog.uscis.gov/2011/03/introducing-e-verify-self-check-online.html.

A transcript of the press conference on this topic is available at http://www.uscis.gov/USCIS/News/Transcript_SelfCheckSecrtry.pdf. A fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9feb59984b9de210VgnVCM100000082ca60aRCRD&vgnextchannel=8a2791daff2df110VgnVCM1000004718190aRCRD.

Back to Top

---

3. New Validation Instrument for Business Enterprises Giving Off Bad VIBE

U.S. Citizenship and Immigration Services (USCIS) has begun “beta-testing” the Validation Instrument for Business Enterprises (VIBE) System, which is run by Dun & Bradstreet. VIBE allows USCIS to receive commercially available information about companies or organizations filing certain employment-based petitions. If the U.S. business entity’s information on the petition is inconsistent with what is in VIBE, USCIS issues a request for evidence (RFE).

Some attorneys have reported that the VIBE system, which is based on publicly available information, too often contains inaccuracies, is unreliable, and requires a significant effort to update.

VIBE allows USCIS to electronically receive commercially available information about a petitioning company or organization, including:

• Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive)
• Financial standing, including sales volume and credit standing
• Number of employees, including on site and globally
• Relationships with other entities, including foreign affiliates
• Status; for example, whether it is a single entity, branch, subsidiary, or headquarters
• Ownership and legal status, such as LLC, partnership, or corporation
• Company executives
• Date of establishment as a business entity
• Current physical address

A USCIS officer reviews all information received through VIBE along with the evidence submitted by the petitioner. Adjudicators use information from VIBE to verify the petitioner’s qualifications. For example, if a petitioner seeks L-1 status for a beneficiary, VIBE will help adjudicators confirm that the petitioner has a foreign affiliate, a requirement for granting L-1 status. In cases where petitioners must establish ability to pay, information from VIBE will assist in confirming the petitioner’s financial viability.

USCIS said it will not deny a petition based upon information from VIBE without first giving a petitioner “the opportunity to respond to USCIS’s concerns.” USCIS will issue an RFE or a Notice of Intent to Deny (NOID) “if it is necessary to resolve relevant inconsistencies or other issues that emerge upon review of information supplied by VIBE that are material to the benefit requested.” The Immigration Services Officer (ISO) will make a final decision “based on the totality of the circumstances,” the agency said.

Immigrant Classifications Included in VIBE

The following I-140 employment-based immigrant classifications are included in VIBE:

• E12: Outstanding professor or researcher
• E13: Multinational executive or manager
• E21: Member of professions holding an advanced degree or an alien of exceptional ability (with the exception of National Interest Waiver petitions)
• E31: Skilled Worker
• E32: Professional
• EW3: Unskilled/Other Worker

Additionally, the following I-360 employment-based immigrant classifications are included in VIBE:

• SD1: Minister of Religion
• SR1: Non-minister in a religious occupation or vocation

Nonimmigrant Classifications Included in VIBE

The following I-129 employment-based nonimmigrant classifications are also included in VIBE:

• E-1: Treaty Trader
• E-2: Treaty Investor
• E-3: Member of specialty occupation who is a national of the Commonwealth of Australia
• H-1B: Specialty occupation worker
• H-1B1: Specialty occupation worker from Chile or Singapore
• H-1B2: Worker performing services related to a Department of Defense (DOD) cooperative research and development project or co-production project
• H-1B3: Fashion model of distinguished merit and ability
• H-2A: Temporary or seasonal agricultural worker
• H-2B: Temporary non-agricultural worker
• H-3: Trainee or special education exchange visitor
• L-1A: Intracompany transferee in a managerial or executive position
• L-1B: Intracompany transferee in a position utilizing specialized knowledge
• LZ: Blanket L petition
• Q-1: International cultural exchange visitor
• R-1: Religious worker
• TN: North American Free Trade Agreement (NAFTA) professional from Canada or Mexico

To read about categories that are not included and the Alliance of Business Immigration Lawyers’ suggestion, please continue to the Immigration Insider.

Back to Top

---

4. USCIS Updates I-129 Instructions Re TARP

Employers who received funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act (“covered funding”) are no longer required to answer Question 1d in Part A of the H-1B Data Collection and Filing Fee Exemption Supplement. The Employ American Workers Act (EAWA) had mandated additional requirements on H-1B petitioners who received covered funding. These requirements ended on February 16, 2011. The additional requirements under EAWA no longer apply to any H-1B petition requesting an employment start date of February 17, 2011, or later.

The updated Form I-129, Petition for a Nonimmigrant Worker, is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f56e4154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD.

Back to Top

---

5. ICE Announces Prison Term for Employing Undocumented Workers

A Missouri woman was sentenced on March 22, 2011, to a year in prison for transporting, harboring, and hiring undocumented workers at the Chinese restaurant she managed. The sentence resulted from a worksite enforcement investigation conducted by U.S. Immigration and Customs Enforcement (ICE).

ICE reported that Hua Huang was sentenced in the Eastern District of Missouri “on two counts each of harboring, transporting, and employing illegal aliens, and one count each of structuring a financial transaction and conspiring to commit visa fraud.” She pleaded guilty to the charges in December. Upon release from prison, Huang will also serve two years of supervised release with a six-month term of home confinement.

The investigation, which was initiated by the Poplar Bluff, Missouri, Police Department, began in February 2009. ICE joined the investigation in October 2009. The investigation revealed that between January 2009 and August 2010, Huang was manager of the China Buffet/Mongolian Grill in Poplar Bluff. During that time she regularly employed a number of undocumented workers from Mexico and China. The employees typically worked 12-hour shifts, six days a week, and were paid in cash amounts far less than minimum wage. Waiters and waitresses were typically paid in tips only. State and federal taxes were not withheld. Cash sales for the restaurant routinely went unreported.

As a result of surveillance conducted by ICE agents and Poplar Bluff police officers, authorities determined that the workers were being housed or “boarded” in two residences owned by individuals and entities connected to the China Buffet/Mongolian Grill. Authorities observed that the workers were shuttled to and from work daily in a van operated by Ms. Huang or other employees of the business.

On August 4, 2010, federal search warrants were executed at several residences and the China Buffet/Mongolian Grill. During the execution of the search warrants, agents seized a 2008 Highlander sport utility vehicle, a 2005 Chevrolet passenger van, and $34,000 in cash. The van was being operated by Ms. Huang to transport the workers to the China Buffet. As part of the prosecution, the vehicles, cash, and four separate pieces of real estate were ordered forfeited, with a total value of more than $350,000.

In her guilty plea, Ms. Huang also admitted to structuring financial transactions to prevent a local bank from reporting those transactions.

The ICE announcement is available at http://www.ice.gov/news/releases/1103/110322stlouis.htm.

Back to Top

---

6. DOL Issues Proposed Rule on H-2B Temporary Nonagricultural Employment

The Department of Labor’s (DOL) Employment and Training Administration and Wage and Hour Division have proposed a rule to revise and solicit comments on the process by which employers obtain temporary labor certifications from the DOL for use in petitioning the Department of Homeland Security (DHS) to employ nonimmigrant workers in H-2B status. The DOL also proposes “to create new regulations to provide for increased worker protections for both U.S. and foreign workers and enhanced enforcement under the H-2B program.”

Among other things, the DOL is revisiting the use of attestations. The DOL said it is interested in receiving comments on the alternative of maintaining the current or some modification of the current attestation-based program design. Specifically, the DOL seeks comments on whether it should develop certain attestations that can be required of all employers (such as an attestation for certain kinds of recruitment), or for only certain program compliance requirements. The DOL proposes to bifurcate the current application process into a registration phase that addresses the employer’s temporary need and an application phase that addresses the labor market test.

The rule also proposes substantive changes to several terms; for example, clarifying what non-agricultural employment is and adding a definition of “area of substantial employment” to the H-2B program. The rule also proposes to amend the definition of “full time” in the H-2B program to mean 35 or more hours per week, instead of the current 30. The DOL said it welcomes comments regarding whether extending the definition of a full-time workweek to at least 40 hours for the H-2B program would better protect U.S. workers and whether it conforms better to employer standards and needs.

Comments may be submitted to the office named in the proposed rule by May 17, 2011. The proposed rule, which was published on March 18, 2011, is available at http://edocket.access.gpo.gov/2011/pdf/2011-6152.pdf.

Back to Top

---

7. DHS Issues Interim Final Rule on Guam-Northern Marianas VWP

The Department of Homeland Security (DHS) issued an interim final rule on March 23, 2011, that clarifies the countries and geographic areas eligible for participation in the Guam-Commonwealth of the Northern Mariana Islands (CNMI) Visa Waiver Program.

The rule notes that effective May 23, 2011, individuals holding British National (Overseas) (BN(O)) passports as a result of their connection to the Hong Kong Special Administrative Region are eligible for participation in the Guam-CNMI Visa Waiver Program. The program allows certain nonimmigrant aliens to enter Guam and/or the CNMI as nonimmigrant visitors for business or pleasure without a visa for a period of authorized stay up to 45 days. This interim final rule provides that individuals holding BN(O) passports as a result of their connection to Hong Kong and traveling to Guam and/or the CNMI under the program on such BN(O) passport must present it and a Hong Kong identification card.

Comments may be sent by May 23 to the person named in the interim final rule, which is available at http://edocket.access.gpo.gov/2011/pdf/2011-6555.pdf.

Back to Top

---

8. USCIS Publishes Prevailing Wage Rates for H-2B Construction Workers on Guam

U.S. Citizenship and Immigration Services (USCIS) seeks comments on the system that the Governor of Guam is using to determine prevailing wage rates for construction occupations on Guam. In addition, USCIS has posted the most recent prevailing wage rates that have been proposed by the Governor of Guam. Based on its own analysis and input from the public, USCIS will determine whether the prevailing wage rates suggested by the Governor of Guam are reasonable and whether USCIS should require a new system to be used by the Governor of Guam in determining the prevailing wage rates.

Comments are due by April 18, 2011, to the office named in the notice, which is available at http://edocket.access.gpo.gov/2011/pdf/2011-6208.pdf.

Back to Top

---

9. ABIL Global: United Kingdom Update: Tier 1

Less migration: The UK government proposes various measures to reduce immigration and save public funds.

On February 16, 2011, the UK Border Agency (UKBA) released a Statement of Intent (SOI) detailing proposals to change the eligibility criteria for the Points-Based System (PBS) Tier 2 migrants and the operation of permanent limits on certain Tier 2 applications. The UKBA also proposed changing the criteria for indefinite leave to remain (ILR) for Tiers 1 and 2 and work permit holders were made. These changes will take effect on April 6, 2011, including the final closure of the Tier 1 (General) category. Increases in application fees have also been proposed due to the need to cut public spending.

The Coalition Government’s overarching aim for UK immigration is to reduce net migration by “selecting the best and brightest.” To help achieve this, UKBA proposes to raise the qualifying thresholds for the Tier 2 category and cap the number of Tier 2 (General) migrants to an annual limit. Moreover, restrictions will extend to the requirements for settlement in the UK to implement the government’s “less automatic settlement” agenda.

UKBA is expected to publish the new Rules and formal guidance shortly.

Proposals for Tier 1 (Highly Skilled)

The final closure of Tier 1 (General) on April 6, 2011, will deal a huge blow to both employers and individuals. After the dubious operational assessment of the category in October 2010, which purported to find that 29% of Tier 1 migrants were in unskilled jobs (the report was based on solely Tier 1 dependents who had been in the UK for six months), UKBA believed it had justification to delete the entire highly skilled migrant category. At least there will be transitional provisions in place for those who will be submitting eleventh-hour Tier 1 (General) applications by post, so that their applications will be assessed in accordance with the Rules in place on the date of application (the date the application is posted).

Under the transitional arrangements, migrants who are not already in Tier 1 (General) or its predecessor category under the highly skilled migrant program will not be permitted to switch into this category beginning on April 6, 2011. The Tier 1 (General) route will remain open to allow those with existing leave to enter or remain under Tier 1 (General) or its predecessor to extend their leave. However, the points threshold for extensions will be raised to 100 points for those who required 100 points when first granted leave.

It is feared by immigration practitioners that the Tier 1 (post study work) category may survive the changes only to be phased out after the new rules are implemented. Generous transitional provisions are anticipated, if this were to be the case.

On a positive note, there are proposals for those recognized as possessing “exceptional talent” from different sectors to be certified as “exceptionally talented.” It will be decided that a migrant meets the “exceptionally talented” criteria by entities who have been delegated the power to certify migrants. The UKBA has yet to set definitive criteria on what will amount to “exceptional talent.” Unsurprisingly, a Nobel prize winner will be viewed as such. The proposals need to be built upon and it is still unclear how the capped allocation of 1,000 migrants for each sector will be managed, let alone how UKBA will deal with an undoubted oversubscription to the category.

Proposals for reform of the Tier 1 Entrepreneur and Investor categories have not yet been published but future (skilled) changes are expected to be nominal.

Back to Top

---

10. ABIL Global: United Kingdom Update: Tier 2

Proposals for Tier 2

As the main category for sponsored skilled workers, Tier 2 requires a Certificate of Sponsorship (COS) from the migrant’s licensed sponsor. These will be divided into “Restricted” and “Unrestricted” COS.

Starting April 6, the Restricted COS will be capped at an annual limit of 20,700 – 4,200 of which will be available for the first month and 1,500 available thereafter. It is proposed that if a monthly limit is undersubscribed, the balance will be added to the allocation for the following month. If the monthly limit is oversubscribed, applications will be prioritized based on a new points table. Much like the old work permit scheme, which ironically the PBS was supposed to displace, sponsors will need to apply to the monthly panel for a Restricted COS each time they wish to sponsor a migrant under Tier 2 (General).

This points system will prioritize occupations on the new shortage occupation list followed by occupations at the Ph.D. level and then occupations meeting the resident labour market test (RLMT). Points will also be awarded for salaries ranging from £20,000-£20,999 with further points for salaries of £100,000 to £149,000. Persons in occupations with salaries of less than £20,000 will be unable to meet the minimum points required.

Unrestricted COS are only available for the Tier 2 categories unaffected by the limit. These fortunate few include intracompany transfers, Tier 2 migrants extending with their original employer or switching to a new employer, migrants switching into Tier 2 (General) from a permitted category, applications under transitional arrangements for existing Tier 2 and work permit holders, positions with a salary over £150,000, and Tier 2 sports people or ministers of religion.

Sponsors will be given an initial annual allocation of Unrestricted COS based on UKBA’s consideration of their allocation requests. These surprisingly generous provisions should enable sponsors to continue employing migrants who are extending their leave with their original employer; switching into Tier 2 (General); or are intracompany transfer migrants, without the need for a salary assessment (as there is for Restricted COS). The consequence will no doubt be a rush of annual allocation requests from sponsors who had been stripped of COS under the previous interim limits. Immigration practitioners are concerned that UKBA may not have provided for this or at least included any mechanism to prioritize urgent requests.

As the new graduate occupation and shortage occupation lists are compiled, some occupations are expected to be dropped from the “skilled” threshold. Positions previously on the shortage occupation list may be removed if they do not meet the new graduate-level criteria. Nevertheless, provided the minimum salary levels are defined clearly and the lists compiled in accordance with Migration Advisory Committee (MAC) recommendations, some positions may be elevated to the new skilled level by virtue of the migrants’ previous experience being equivalent to graduate-level. This will apply to all migrants across the board for both Restricted and Unrestricted COS.

Another change proposed for the Tier 2 category is the increased English-language requirement to intermediate English at level B1 on the Common European Framework of Reference for languages. Furthermore, Tier 2 entry clearance applicants will no longer be able to claim points for qualifications.

Settlement

Migrants submitting applications for ILR in the UK on or after April 6, 2011, will be affected by the changes to settlement requirements to be introduced on April 6, 2011. The changes will introduce a new income requirement for Tier 1 (General), Tier 2 (General) and work permit holders applying for settlement; will amend the Knowledge of Language and Life in the UK requirement for Tier 1 (General), Tier 2 (General) and work permit holders; and will clarify the criminality test applied to all applicants for settlement. UKBA’s proposals to tighten settlement requirements bear, on closer inspection, a likeness to the outgoing government’s ideas (published in the “Path to Citizenship” green paper on February 20, 2008) for selecting migrants with “the right values and commitments” who could integrate well into British society. There is one key difference however, as there appears to be no inclination to mimic the “earned citizenship” proposal.

Unfortunately, as changes are proposed for the Tier 1 and Tier 2 categories, UKBA has failed to align its proposals with settlement rules and nationality law. For instance, the lure of “accelerated settlement” for Tier 1 (Entrepreneur) and Tier 1 (Investor) migrants who invest more money into the UK does not factor in the requirement of continuous residence in the UK under the settlement rules, which most entrepreneurs and investors will not be able to meet. UKBA has remained silent on this matter, but it is evident that primary legislation may need to be amended accordingly.

Conclusion

UKBA’s aim to create a “flexible system designed to meet business needs” as well as to reduce net economic migration may seem almost impracticable but may be indeed achieved in part. Though it is a difficult balancing act, it cannot be denied that many potential applicants will now fall short of the higher thresholds, resulting in a net reduction in migration. It remains to be seen whether the new rules will constrict businesses from employing as many non-EEA migrants as required or whether businesses will remain unscathed.

Back to Top

---

11. ABIL Webinar: 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.

This timely 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, will help 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. The series will explain immigration options and offer 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, to be held April 13 at 12 noon (ET). 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 pm (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 pm (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

The cost is $89 for an individual session or $249 for all three sessions. To register, go to the ABIL Webinars sign-up page at https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, contact Lauren Anderson at lauren@abil.com or visit abil.com.

Back to Top

---

12. . Congress Passes ‘CIFAF’ Bill in Dead of Night on April 1

In an apparent effort to avoid debate, the House of Representatives and Senate both passed the “Comprehensive Immigration Reform April Fools” bill, or CIRAF, not to be confused with GIRAFFE (and pronounced “Siraf,” which is often followed by Gesundheit). On April 1, 2011, the bill was passed in a whirlwind late-night session fueled by Hawaiian pizza and Kenyan kabobs. Afterwards, various members of Congress fanned out across the District of Columbia searching for bars to hit, either to celebrate or to brace themselves for the ensuing public reaction, which was expected to be pretty intense.

The new bill basically lets everyone in, then kicks them all out within 30 days. “This bill achieves the right balance between enforcement and benefits,” President Barack Obama said. “There is something for everyone in this legislation and therefore nobody should get mad at me. I am really a very nice guy,” he noted, flashing his trademark smile. The President added that he would sign the bill just as soon as he is able to verify the U.S. citizenship of each member of Congress via an original birth certificate. Certified copies have been deemed unacceptable as proof of citizenship.

Joe the Plumber, the current favorite for the 2012 Republican presidential nomination, was unavailable for comment. Drudgereport.com reported a rumor that he was stuck in detention after a short trip to Arizona, after which he was stopped for being “foreign-looking.”

Back to Top

---

13. New Publications and Items of Interest

Data on EB-5 approvals and Regional Center filings. U.S. Citizenship and Immigration Services (UCSIS) released its latest data on EB-5 filings and Regional Centers (RCs) at its March 17, 2011, EB-5 Stakeholders Meeting held at the California Service Center. USCIS figures show a steep increase in the number of RC filings and EB-5 visa approvals in the first quarter of fiscal year 2011. A PowerPoint presentation and other information from the Stakeholders Meeting are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=68da76be729ce210VgnVCM100000082ca60aRCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD.

Executive summary of EB-5 investor quarterly engagement. On March 17, 2011, the U.S. Citizenship and Immigration Services (USCIS) Service Center Operations (SCOPS) Directorate and the Office of Public Engagement (OPE) released an executive summary of their December 16, 2010, EB-5 Investor Quarterly Engagement. In addition to providing various updates on statistics, processing times, and the recently instituted EB-5-related forms, USCIS responded to input received from the public before the engagement.

The executive summary is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4c68d1f2465ae210VgnVCM100000082ca60aRCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD. The PowerPoint presentation and other related information and links are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=858206489ec6a210VgnVCM100000082ca60aRCRD&vgnextchannel=e0b081c52aa38210VgnVCM100000082ca60aRCRD.

Solicitation for grant applications to operate national farmworker jobs training program. The Department of Labor’s Employment and Training Administration announced a grant competition for operating the National Farmworker Jobs Program (NFJP). The fiscal year 2011 appropriations request for this program is $78,410,000, to be allocated among state service delivery areas for operation of NFJP. The notice, which was published on March 17, 2011, is available at http://edocket.access.gpo.gov/2011/pdf/2011-6245.pdf.

Back to Top

---

14. Member News

H. Ronald Klasko (bio: http://www.abil.com/lawyers/lawyers-klasko.cfm?c=US) has announced the next Klasko, Rulon, Stock & Seltzer annual spring seminar, to be held April 12, 2011, from 9:30 a.m. to 1 p.m. at The Union League of Philadelphia. Topics will include updates on legislation, special handling, worksite enforcement, USCIS, CBP, DOL, new export control requirements, and EB-2/EB-3 strategy, and there will be a corporate roundtable. For more information, call (215) 825-8600.

Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) has published several new blog entries on his Web site. “BALCA on Using a Range of Experience in Recruitment” analyzes the BALCA decision, Matter of CCG Metamedia, Inc. The blog notes that “regardless of previous success utilizing a particular method or type of recruitment, we cannot afford to become comfortable with the ever-changing PERM process and…these BALCA decisions provide invaluable insight into continuing to avoid the pitfalls of PERM.” For more on this topic, see Mr. Mehta’s December 2010 article, “Analysis of Selected Recent BALCA Decisions As Practice Pointers To Avoid PERM Denials,” available at http://www.cyrusmehta.com/News.aspx?SubIdx=ocyrus201012613454. “Naturalization While Working Overseas For An American Firm ” examines the inadequacy of an exception under the law that was designed to avoid the need to maintain continuous residence for purposes of naturalizing if a permanent resident is employed by an American firm overseas, or its subsidiary, that engages in the development of foreign trade and commerce of the U.S. The blog is available at http://cyrusmehta.blogspot.com/2011/03/naturalization-while-working-abroad-for.html.

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US) has published several new blog entries. “Immigration ‘Language Is the Skin of the Soul’ ” discusses how recent immigration-related events illustrate the language-induced unveiling of popular passions. The blog is available at http://nationofimmigrators.mt4temp.lexblognetwork.com/general-immigration/immigration-language-is-the-skin-of-the-soul/. “America’s Creaking, Crotchety Immigration System – Not Ready for the Globalized World” discusses immigration reform and enforcement efforts nationwide and among the states, and argues that economic prosperity and job creation must be the prime U.S. immigration policy, with pragmatism and humane treatment closely in tow.. The blog is available at http://www.nationofimmigrators.com/immigration-reform/americas-creaking-crochety-immigration-system—-so-not-ready-for-the-globalized-world/.

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) and Mr. Mehta published articles in Legal Briefs on Immigration Reform. Editors Deborah Robinson and Mona Parsa asked 25 of the top legal minds in the U.S. this question: If you were called upon by the President of the United States to recommend a piece of immigration legislation that could pass the legal test of the U.S. Constitution and both houses of Congress, what would it include? This book is their answer. More information on the book is available at http://www.25legalbriefs.com/.

Back to Top

---

15. 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. Mayorkas Discusses USCIS Goals for 2011; VIBE System Introduced – The Alliance of Business Immigration Lawyers recommends that clients check their profile and make sure that the major areas are correct to avoid requests for evidence in the future.

2. E-Verify Self-Check Going Live in March – The self-check process is voluntary and available to any individual who wants to check his or her own work authorization status before employment and facilitate correction of errors in federal databases.

3. DOL Posts New FAQ for H-1B, H-1B1, E-3 Programs; Releases New Data – The Office of Foreign Labor Certification has posted a new FAQ for the H-1B, H-1B1, and E-3 programs.

4. DOS Releases New Guidance on L Visas, Specialized Knowledge – DOS noted “concern about the potential for inconsistent adjudicatory standards at different constituent posts,” and said that “clear standards would allow for more consistent adjudication.”

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

6. Member News – Member News

7. Government Agency Links – Government Agency Links

---

Details:

1. Mayorkas Discusses USCIS Goals for 2011; VIBE System Introduced

On February 17, 2011, Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services (USCIS), held a press conference at which he discussed the agency’s goals for 2011 and a policy review already underway. The agency’s goals and planned activities for 2011 include, among others:

• Piloting the Validation Instrument for Business Enterprises (VIBE) tool, which uses commercially available information from Dun & Bradstreet to validate evidence submitted by companies petitioning to employ a foreign worker in the U.S.
• Promoting consistency in the administration of immigration laws and adjudication policies as part of a comprehensive policy review, and updating policies where necessary
• Issuing precedent decisions from the Administrative Appeals Office on a regular basis
• Combating fraud, including the unauthorized practice of law
• Combating fraud, including the unauthorized practice of law

USCIS has begun beta-testing the VIBE system. USCIS promised that it will give employers an opportunity to respond when the VIBE system leads to agency concerns regarding the business. The Alliance of Business Immigration Lawyers (ABIL) recommends that clients check their profile and make sure that the major areas (company address for example) are correct to avoid requests for evidence in the future. Contact your ABIL attorney for guidance.

The transcript of the press conference is available at http://www.uscis.gov/USCIS/News/2011%20New%20Items/February%202011/transcript_StrategicGoalsInit_2011.pdf.

Back to Top

---

2. E-Verify Self-Check Going Live in March

The Department of Homeland Security (DHS) is establishing a new self-check process for E-Verify, effective March 18, 2011. The self-check process is voluntary and available to any individual who wants to check his or her own work authorization status before employment and facilitate correction of errors in federal databases (such as those of the Social Security Administration, DHS, and the Department of State) that feed information into the E-Verify process. DHS said E-Verify Self-Check “provides a vehicle for an individual to proactively check work authorization status prior to the employer conducting the E-Verify inquiry.”

DHS noted that when an individual uses E-Verify Self-Check, he or she will be notified either that (1) the information matched the federal databases and the individual would be deemed work-authorized, or (2) there was a “mismatch,” in which case he or she will be given instructions on how to correct the record(s).

The notice announcing the new system and inviting comments, which must be submitted by March 18, 2011, is available at http://www.gpo.gov/fdsys/pkg/FR-2011-02-16/pdf/2011-3490.pdf.

Back to Top

---

3. DOL Posts New FAQ for H-1B, H-1B1, E-3 Programs; Releases New Data

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has posted a new frequently asked questions (FAQ) document for the H-1B, H-1B1, and E-3 programs. The FAQ discusses, among other things, which visa classifications require the filing of a labor condition application (LCA); the definition of a “specialty occupation”; how to obtain H-1B disclosure information or file an H-1B complaint; details on initiating the hiring and application processes; LCA requirements; prevailing wage issues; notice requirements; working conditions; post-LCA-approval changes; termination of employment; and other issues.

Among other things, the FAQ notes that H-1B complaints should be filed with the local Wage and Hour Division office that has jurisdiction over the physical location of the employer. The OFLC suggests checking the “blue pages” in the telephone book or http://www.dol.gov/whd/america2.htm#Map. The form for filing a complaint (Form WH-4) may be downloaded at http://www.dol.gov/whd/forms/fts_wh4.htm.

The FAQ is available at http://www.foreignlaborcert.doleta.gov/pdf/H1BFAQ021711.pdf.

The OFLC also is now making available quarterly disclosure files covering employer applications processed under the PERM, H-1B, H-2A, and H-2B visa programs. Additionally, the OFLC is publishing a new set of case level data covering employer requests for prevailing wage determinations processed by the OFLC National Prevailing Wage Center, which opened in January 2010 in Washington, DC.

The new data are available at http://www.foreignlaborcert.doleta.gov/quarterlydata.cfm.

Back to Top

---

4. DOS Releases New Guidance on L Visas, Specialized Knowledge

The Department of State (DOS) released a new cable in January to all diplomatic and consular posts on guidelines for L visa adjudications, particularly in regard to evaluating claims of “specialized knowledge.” DOS noted “concern about the potential for inconsistent adjudicatory standards at different constituent posts,” and said that “clear standards would allow for more consistent adjudication.” The cable adds, however, that “[u]nfortunately, the statutory language defining ‘specialized knowledge’ is not simple or clear.”

The cable notes that a worker is considered to be serving in a capacity involving specialized knowledge with respect to a company if he or she “has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.” The cable acknowledges that the definition contains undefined terms and elements of circular reasoning.

Given the lack of statutory clarity, the cable notes that determinations of specialized knowledge often depend on the consular officer’s expertise on a case-by-case basis. The cable, which outlines criteria that posts may use in making such adjudications, is available at http://travel.state.gov/pdf/Guidance_on_L_Visas_and_Specialized_Knowledge-Jan2011.pdf.

Back to Top

---

5. New Publications and Items of Interest

AAO on precedent decisions. The Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services recently released a presentation, “Administrative Appeals Office: Precedent Decisions.” The presentation discusses the nuts-and-bolts of what a precedent decision is and is not, and how precedent decisions are published. The presentation also briefly discusses the history of the publication of immigration-related precedent decisions.  As noted above in the first article, the AAO plans to publish more precedent decisions in the future.

The presentation is available at http://www.uscis.gov/USCIS/Laws/AAO/AAO%20DHS%20Precedent%20Decision%20Process%20Print%20Version.pdf.

U.S. citizenship test – wrong answers? An article in the February 23, 2011, issue of Slate magazine online discusses incorrect answers on the U.S. citizenship test. For example, the article notes that question 36 asks the applicant to name two members of the President’s Cabinet. One of the possible answers listed is “Vice President”; although the vice president is a Cabinet-level officer, he is not a member of the President’s Cabinet because only unelected heads of executive departments are considered as such, and the Vice President is elected. The article is available at http://www.slate.com/id/2286258/pagenum/all/#add-comment.

Back to Top

---

6. Member News

Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm?c=US) has published an editorial, “Unconstitutional Arizona-Style Laws Are a Bonanza to Lawyers,” in the February 23, 2011, issue of the Atlanta Journal-Constitution. Mr. Kuck noted that such a law in Georgia would “increase taxes on every resident of Georgia by increasing government regulation, create unfunded mandates for every county and city in Georgia, and create new private rights of action against every Georgia polity, resulting in hundreds of lawsuits that will drain taxpayer coffers and result in little, if any, real change in illegal immigration.” The editorial is available at http://www.ajc.com/opinion/pro-con-does-georgia-850454.html (scroll down).

Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) has published a new blog entry. “EAWA Has Sunset” notes that Congress has not passed legislation to extend the “Employ American Workers Act,” which created additional attestation requirements for employers filing H-1B visa petitions who received funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act. Mr. Mehta called EAWA “a blatant exercise in American protectionism.,” and said, “Thank goodness that the EAWA has sunset so that the best and brightest from all over the world, especially foreign students who have graduated from American universities, can be employed like other H-1B workers at institutions that need their talent to recover from the Great Recession, and thrive and prosper.” The blog is available at http://cyrusmehta.blogspot.com/2011/02/eawa-has-sunset.html.

Mr. Mehta will serve as program chair for PLI Basic Immigration Law 2011, to be held on March 17, 2011, in New York and via Webcast. This program will explain the basic concepts of U.S. immigration law and procedure, and reflect current developments and trends, including developments relating to Arizona’s immigration law. Attendees will receive a course handbook with articles by leading practitioners and sample documents and forms. For more information, see http://www.pli.edu/Content.aspx?dsNav=N:4294966198-164&ID=99843.

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US) has published several new blog entries. “Immigration ICE Storms Are Brewing: 7 Steps Employers Must Take Now” discusses an article Mr. Paparelli co-wrote on precautions employers should take in a time of heightened inspections. The blog, which includes tips for employers, is available at http://www.nationofimmigrators.com/i-9s/immigration-ice-storms-are-brewing-employers-must-take-shelter/. “Time for Congress To Streamline the H-1B Process” discusses the hodgepodge of the current H-1B process and recommends changes. For example, Mr. Paparelli argues that eliminating the labor condition application (LCA) review by the Department of Labor would shave seven days off the time it takes before USCIS can adjudicate an H-1B petition, since this is the time Congress provided the DOL to “certify” the LCA. This savings of time, he says, is especially important each year in March “when every day counts as employers scramble to file their H-1B petitions by April Fools’ Day in order to fall within the woefully small H-1B annual quota.” The blog is available at http://www.nationofimmigrators.com/immigration-reform/time-to-streamline-the-h-1b-visa/index.html.

Mr. Paparelli was recently quoted in Human Resource Executive Online. In an article published on February 15, 2011, on keeping foreign Ph.D. graduates in the U.S., Mr. Paparelli suggested that U.S. efforts to remain competitive would be better served by a market-based H-1B system rather than Congress setting an arbitrary, fixed number. “Why have a quota on additional bright people in this country when the market [for talent] is [tight]?” he asked. The article is available at http://www.hreonline.com/HRE/story.jsp?storyId=533330181.

Mr. Paparelli and Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) will present in a Webinar, “U.S. Investment Visas and Green Cards for Foreign Clients – A Webinar for Corporate and Tax Lawyers,” to be held on Tuesday, March 8, 2011. They will discuss the advantages and disadvantages of the various visa options for entrepreneurs, along with tax and corporate law considerations. For more information, see http://www.martindale.com/Communities/Connected_Pulse/Member_Events/2011/foreign_entrepreneurs_immigration_options.aspx.

 

Back to Top

---

7. Government Agency Links

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

USCIS Service Center processing times online: 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. H-1B Cap Reached for FY 2011 – January 26, 2011, is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2011.

2. ICE Announces New I-9 Compliance Inspection Center, Partnership With Tyson Foods; Audits Increase – Fifteen additional auditors will focus their efforts on major investigations of the largest companies.

3. State Dept. Announces New Passport Forms Starting March 1 – Applicants should continue to use the current forms to submit a passport application before that date.

4. House Holds Hearing on Worksite Enforcement Issues – Testifying on the panel were Kumar Kibble, ICE Deputy Director, and others.

5. IRS Publishes W-4 Instructions for Nonresident Aliens – The IRS has modified the instructions on the W-4 for nonresidents to reflect restrictions on their filing status, the limited number of exemptions allowed, and the standard deduction.

6. ABIL Global: Hong Kong Makes Changes to Capital Investment Entrant Scheme (CIES) – In the short term, the beneficiary of these changes is the U.S. EB-5 program.

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. H-1B Cap Reached for FY 2011

U.S. Citizenship and Immigration Services (USCIS) announced on January 26, 2011, that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011.

USCIS noted that January 26, 2011, is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2011. The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. Properly filed cases will be considered received on the date that USCIS physically receives the petition, not the date that the petition was postmarked. USCIS said it will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2011 that arrive after the final receipt date.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on January 26, 2011. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

USCIS noted that it will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the FY 2011 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

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

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as scientists, engineers, or computer programmers.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7fd9b9138c9cd210VgnVCM100000082ca60aRCRD&vgnextchannel=b56db6f2cae63110VgnVCM1000004718190aRCRD.

 

Back to Top

---

2. ICE Announces New I-9 Compliance Inspection Center, Partnership With Tyson Foods; Audits Increase

On January 20, 2011, U.S. Immigration and Customs Enforcement (ICE) announced the creation of an employment compliance inspection center in Crystal City, Virginia. At the center, 15 auditors will support ICE’s worksite enforcement strategy by helping agency field offices around the country expedite employment authorization verification (Form I-9) audits of businesses selected for inspection by ICE. Currently, ICE employs 137 full-time auditors. The 15 additional auditors will focus their efforts on major investigations of the largest companies, ICE Director John Morton said.

From fiscal year 2009 to the present, ICE initiated I-9 inspections of 3,769 businesses across the U.S. Last year, ICE audited 2,200 companies, the largest number of audits the agency has conducted in a year.

ICE also announced the same day that Tyson Foods, Inc., is the newest member of the agency’s nationwide program designed to encourage businesses to collaborate with ICE and use hiring best practices to ensure that they are maintaining a lawful workforce. Tyson Foods Senior Vice President and Chief Human Resources Officer Ken Kimbro and ICE Director John Morton signed the “ICE Mutual Agreement between Government and Employers” (IMAGE) agreement during a ceremony at ICE headquarters.

Tyson Foods, Inc., which employs almost 100,000 people at locations throughout the U.S., is the first major food company to become a full member of ICE’s IMAGE program. The voluntary program allows businesses to partner with ICE as part of their efforts to maintain an authorized workforce and protect themselves from the use of fraudulent identity documents by current or prospective employees. ICE said this program complements ICE’s worksite enforcement strategy, which focuses on holding accountable employers that knowingly hire unauthorized workers to minimize operating costs and boost profits.

To become certified, Tyson was subject to an I-9 audit and other checks by ICE. The company met other IMAGE requirements with programs it already has in place. For example:

• Tyson conducts regular self-assessments or internal audits of its hiring activities. The company also uses an independent outside company to conduct its own audits of the company’s hiring practices.
• Tyson voluntarily participates in the online government employment verification program known as E-Verify. The company also voluntarily uses the “Social Security Number Verification Service.”
• Tyson trains all of its employment managers on the hiring process, proper completion of the I-9, and document examination and fraud detection.

ICE initiated the IMAGE program in 2006. All IMAGE members must participate in the Department of Homeland Security (DHS) E-Verify employment eligibility verification program, which provides an automated link to the Social Security Administration database and DHS immigration records.

Upon enrollment in and commitment to the IMAGE Best Employment Practices, program participants are deemed “IMAGE certified,” a designation DHS and ICE say will become an industry standard. IMAGE also provides employers free training on the I-9 process, fraudulent document detection, and building a solid immigration compliance model.

The press release announcing the new inspection center and the partnership with Tyson Foods is available athttp://www.ice.gov/news/releases/1101/110120washingtondc.htm.

Back to Top

---

3. State Dept. Announces New Passport Forms Starting March 1

The Department of State has announced that new passport forms will be available on March 1, 2011. The Department advises that applicants should continue to use the current forms to submit a passport application before that date. Travel.State.Gov and all passport facilities will make the new forms available on March 1, 2011.

The passport forms that are being updated as of March 1 are:

• Form DS-11: Application for a U.S. Passport
• Form DS-82: U.S. Passport Renewal Application for Eligible Individuals
• Form DS-4085: Application for Additional Visa Pages or Miscellaneous Passport Services
• Form DS-5504: Application for a U.S. Passport (Name Change, Data Correction, Limited Passport Replacement)
• Form DS-3053: Statement of Consent or Special Circumstances: Issuance of a Passport to a Minor under Age 16

For more information, see http://www.travel.state.gov/passport/passport_1738.html.

Back to Top

---

4. House Holds Hearing on Worksite Enforcement Issues

On January 26, 2011, the House of Representatives’ Subcommittee on Immigration Policy and Enforcement held a hearing on worksite enforcement issues. Testifying on the panel were Kumar Kibble, Deputy Director of U.S. Immigration and Customs Enforcement (ICE); Mark Krikorian, Executive Director, Center for Immigration Studies; Michael Kutler, INS Senior Special Agent, and Daniel Griswold, Director, Center for Trade Policy Studies, Cato Institute.

Mr. Kibble noted that in fiscal year 2010, ICE initiated a record 2,746 worksite enforcement investigations, more than doubling the number of cases initiated in FY 2008. He said ICE is prioritizing the criminal prosecution of employers “who knowingly hire undocumented workers, abuse and exploit their workers, engage in the smuggling or trafficking of their alien workforce, or facilitate document or benefit fraud.” He noted that over the past two years, the Department of Homeland Security “has engaged in record enforcement” and has removed more people in 2009 and 2010 “than in any point in the history of our country, including more than 195,000 criminal aliens last year.”

The full hearing testimony is available at http://judiciary.house.gov/hearings/hear_01262011.html.

Back to Top

---

5. IRS Publishes W-4 Instructions for Nonresident Aliens

The Internal Revenue Service has revised “Supplemental Form W-4 Instructions for Nonresident Aliens.” The IRS has modified the instructions on the W-4 for nonresidents to reflect restrictions on their filing status, the limited number of exemptions allowed, and the standard deduction. Nonresident aliens must follow special instructions when completing Form W-4, Employee’s Withholding Allowance Certificate, available at http://www.irs.gov/pub/irs-pdf/fw4.pdf, for compensation paid to such individuals as employees performing dependent personal services in the U.S. Compensation for dependent personal services includes amounts paid as wages, salaries, fees, bonuses, commissions, compensatory scholarships, fellowship income, and similar designations for amounts paid to an employee.

The revised Notice 1392 is available at http://www.irs.gov/pub/irs-pdf/n1392.pdf.

Back to Top

---

6. ABIL Global: Hong Kong Makes Changes to Capital Investment Entrant Scheme (CIES)

The Hong Kong Capital Investment Entrant Scheme has been extremely popular. Successful applicants can benefit from one of the premier financial centers of the world with a robust economy and a low, simple and predictable tax regime. Initially launched by the Hong Kong Special Administrative Region (SAR) government in October 2003 to attract investments from qualifying individuals who wished to obtain Hong Kong residency through making a capital investment without the need to establish or join in a business in Hong Kong, as of the end of 2010, 16,600 applications had been received and 8,924 applicants had invested a total of $63.31 billion, representing an average of HKD $7.09 million per entrant.

On October 14, 2010, responding to Hong Kong’s Chief Executive Donald Tsang’s concerns about surging property prices n Hong Kong expressed in his annual policy address, the government temporarily removed real estate from the permissible investment asset classes under the CIES because 40% of the investments in the first half of 2010 had been in real estate.

More specifically, the amendments included the following changes:

i)  The threshold of investment (and net assets/net equity requirement) for admission to Hong Kong under the CIES was raised from HK$6.5 million (USD $834,000) to HKD $10 million (USD $1.28M);

ii)  Real estate was suspended temporarily as a class of Permissible Investment Assets (PIA) under the CIES; and

iii)  An insurer authorized to carry on Class C business as specified in Part 2 of the First Schedule to the Hong Kong Insurance Companies Ordinance became eligible, in addition to banks, to act as a financial intermediary for the purpose of the CIES

The government believes that despite the amendments, the scheme remains competitive compared with the investment programs of other jurisdictions, and promised that the investment threshold (and net assets/net equity requirement) will be reviewed once every three years. With respect to the temporary suspension of real estate as a class of PIA, this decision will be assessed at the next regular review, or earlier as necessary.

In the short term, the beneficiary of these changes is the U.S. EB-5 program, which has become relatively “cheap” at USD $500,000, since Canada’s investment threshold is currently CDN $800,000, while effective January 1, 2011, the Singapore Monetary Authority’s Financial Investor Scheme (FIS) requires applicants to place S $10 million in assets for a continuous period of five years, up from a minimum of S $5 million previously, with a financial institution regulated by the Monetary Authority of Singapore, although a portion – up to $2 million – can be used to buy private residential properties.

Back to Top

---

7. New Publications and Items of Interest

GAO report on E-Verify. The U.S. Government Accountability Office (GAO) has published “Employment Verification: Federal Agencies Have Taken Steps To Improve E-Verify, But Significant Challenges Remain.” The GAO found that since June 2008, U.S. Citizenship and Immigration Services (USCIS) has taken several steps to improve the accuracy of the E-Verify system, including expanding the number of databases queried through E-Verify and instituting quality control procedures. As a result, the GAO noted, USCIS data indicate that E-Verify immediately confirmed about 97.4 percent of almost 8.2 million newly hired employees as work authorized during fiscal year 2009, compared to 92 percent from fiscal year 2006 to the second quarter of fiscal year 2007.

However, the GAO found that E-Verify errors persist. Also, if an authorized employee’s name is recorded differently on various authorizing documents, the E-Verify system is to issue a tentative nonconfirmation (TNC) for the employee. Because such TNCs are more likely to affect foreign-born employees, the GAO said, they can lead to the appearance of discrimination. USCIS has not disseminated information to employees advising them of the importance of consistently recording their names on documentation provided to employers, and the GAO concluded that doing so could help USCIS ensure data accuracy. Furthermore, the GAO said that E-Verify remains vulnerable to identity theft and employer fraud.

The GAO found that USCIS has taken steps to minimize risks to the privacy of personal information for new employees who are processed through E-Verify, but that employees are limited in their ability to identify the source of errors and to determine how to correct information in DHS databases that may have led to an erroneous TNC. To identify and access the source of the incorrect data, the GAO noted, employees must use methods such as Privacy Act requests, which, in fiscal year 2009, took an average of 104 days to process. DHS officials acknowledged that the current process for employees to correct their records could be improved and said the agency is discussing ways to provide employees with better access to relevant information.

The GAO also noted that USCIS and the Social Security Administration (SSA) have taken actions to prepare for possible mandatory implementation of E-Verify for all employers nationwide by addressing key practices for effectively managing E-Verify system capacity and availability and coordinating with each other in operating E-Verify. However, the GAO found that USCIS’s lifecycle cost estimates for E-Verify do not reliably depict current costs (i.e., they do not include all costs associated with maintaining and operating E-Verify) and that SSA’s estimates do not consider the risk associated with changes in SSA’s E-Verify workload. Without taking steps to increase reliability and reduce risks, the agencies are at increased risk of not securing sufficient resources to effectively execute program plans in the future, the GAO said.

Meanwhile, on January 18, 2011, House Judiciary Committee Chairman Lamar Smith (R-Tex.) issued a statement on the GAO report. He said that E-Verify is a “remarkably effective tool” and a “very successful program,” and noted that the House is scheduled to hold a hearing to discuss ways to improve and expand the program “to better protect jobs for legal workers.”

The full report is available at http://www.gao.gov/new.items/d11146.pdf. Rep. Smith’s statement is available at http://judiciary.house.gov/news/2011/jan/110118_gao1.html.

Back to Top

---

8. Member News

Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm) has published a new blog entry, “The Rule of Law and Immigration,” which argues that an understanding of the concept of the “rule of law” in the context of the U.S. immigration system might better serve our national debate on immigration and bring us closer to resolving a problem that is not intractable. The blog is available at http://musingsonimmigration.blogspot.com/2011/01/rule-of-law-and-immigration.html.

Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm) spoke on “How to Build and Maintain an Adequate Immigration Compliance Program” at the City Bar of New York on January 13, 2011.

Mr. Mehta has published a new blog entry, “Form I-9 and H-1B Portability.” The blog, which discusses the revised I-9 handbook recently released by U.S. Citizenship and Immigration Services, is available at http://cyrusmehta.blogspot.com/.

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm) has posted several new blog entries. “The Nine Best Immigration Practices for U.S.-Inbound Businesses, Entrepreneurs and Investors,” which offers best immigration practices and identifies traps to avoid when a foreign firm or individual plans to start a business in America, is available at http://blogs.ilw.com/angelopaparelli/2011/01/the-9-best-immigration-practices-for-us-inbound-businesses-entrepreneurs-and-investors.html. He notes in his blog entry, “ICE’s New Employment Compliance Inspection Center to Target the Largest U.S. Companies,” that ICE, emboldened by its parade of victories against mostly tiny employers ($7 million in fines against 2,740 firms in 2010), is now poised to target some of America’s largest companies. The blog is available at http://www.electronici9.com/i-9/ices-new-employment-compliance-inspection-center-to-target-the-largest-u-s-companies/.

Steve Trow (bio: http://www.abil.com/lawyers/lawyers-trow.cfm?c=US) was a discussion and panelist in the Webinar, “The Exit Tax Rules for Would-Be Expatriates,” held on January 20, 2011, by the American Immigration Lawyers Association. The Webinar covered the ramifications of U.S. citizens and permanent residents who expatriate, noting that they can be hit with massive income tax liabilities under the latest iteration of the exit tax laws. Their U.S. heirs may have to pay tax when they inherit or receive property from their expatriate parents. The Webinar encouraged expatriates to understand the tax cost of relinquishing citizenship or permanent resident status before they take that fateful step.

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) moderated a phone seminar with Department of Commerce officials and other export controls experts concerning the new “deemed export” rule and changes to Form I-129. The seminar was held on February 1, 2011, by the American Immigration Lawyers Association.

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

Headlines:

1. DREAM Act Fails in Senate – Prospects are dim for further developments in the near future, although Democrats vowed to push for the legislation and to include it in any comprehensive immigration reform bill.

2. USCIS Delays Deemed Export Attestation on New I-129 – The new edition of Form I-129, Petition for a Nonimmigrant Worker, went into effect on December 23, 2010, but petitioners may leave Part 6 blank until February 20, 2011.

3. File H-1B Petitions Now, ABIL Advises; USCIS Plans Proposed Rule to Establish Electronic H-1B Pre-Registration – 53,900 cap-eligible petitions have been approved or are pending.

4. USCIS Issues Final Rule for CNMI-Only Investor Program – The “E-2 CNMI Investor Visa” allows foreign long-term investors to reside in the CNMI through December 2014; petitions will be accepted beginning January 18, 2011.

5. CBP Expands Global Entry ‘Trusted Traveler’ Program to Mexicans, SENTRI, NEXUS Members – CBP reports that the program “reduces average wait times by 70 percent while maintaining and enhancing security.”

6. USCIS Seeks OMB Approval for New E-Verify Employer Survey – The University of Arizona will conduct the survey of 900 employers, and final summary results will be publicly released.

7. ABIL Global: Turkey Implements Significant Changes in Work Permit Criteria – It is unprecedented for the Ministry to publicly announce concrete details of adjudication factors.

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. DREAM Act Fails in Senate

The House of Representatives passed the DREAM (Development, Relief and Education for Alien Minors) Act on December 8, 2010, but the Senate failed to pass the bill on December 18. The outcome was 55-41, which was five votes short of the 60 needed to bypass a filibuster by Republicans and move the bill forward.

Prospects are dim for enactment in the near future, although Democrats vowed to push for the legislation and to include it in any comprehensive immigration reform bill. President Barack Obama said he found the results “incredibly disappointing” but that his administration “will not give up on the DREAM Act, or on the important business of fixing our broken immigration system.” House Speaker Nancy Pelosi said, “Though disappointed by the result of today’s DREAM Act vote in the Senate, we are not deterred in our determination to continue advocating for this critical legislation.” Sen. Lindsey Graham (R-S.C.) countered, “We’re not going to pass the DREAM Act or any other legalization until we secure our borders. It will never be done stand-alone. It has to be part of comprehensive immigration reform.” (The Senate passed a $600 million border security bill in August.)

The DREAM Act, which has a long history, would allow qualified undocumented children to apply for conditional legal immigration status and eventually to obtain permanent residence if they meet certain requirements.

Back to Top

---

2. USCIS Delays Deemed Export Attestation on New I-129

The new edition of Form I-129, Petition for a Nonimmigrant Worker, took effect on December 23, 2010, as previously announced by U.S. Citizenship and Immigration Services. The form is used to file nonimmigrant petitions for employees in categories such as H-1B, L-1 and O-1. The new edition has a revision date of November 23, 2010.

Part 6 of the new I-129 contains a new “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” The employer must certify, with respect to any technology to which the employee will have access on the job, that a license from the Departments of Commerce or State is not required to release the technology to the foreign national (or, in the rare case that a license is required, the employer will restrict the beneficiary’s access to the technology until a license is obtained). Until February 20, 2011, petitioners may leave Part 6 blank.

As background, U.S. law prohibits the export of controlled technology and technical data to certain foreign nationals located within the United States without a license to do so. U.S. law treats as an export the release of controlled technology or technical data to a foreign national working in the United States, even if the company does not export anything overseas. Technology or source code is considered released for export when it is made available to foreign nationals for visual inspection (such as reading technical specifications, plans, or blueprints), when technology is exchanged orally, or when technology is made available by practice or application under the guidance of persons with knowledge of the technology. Such exports of controlled technology or technical data must be authorized through an export license issued by the Commerce or State Department before release to the nonimmigrant foreign national. To properly complete the new I-129 form, an employer must first classify the technology or technical data that will be released to or be accessed by a prospective foreign national employee to determine whether an export license may be required.

The Commerce Department lists items subject to export licenses at http://www.access.gpo.gov/bis/ear/ear_data.html#ccl. The State Department’s export regulations are at http://www.pmddtc.state.gov/regulations_laws/itar.html. The Commerce Department has a series of six training modules, “Essentials of Export Controls,” at http://www.bis.doc.gov/seminarsandtraining/essentials_of_export_ctrls.htm. The training modules can also be downloaded in PDF format at http://www.bis.doc.gov/seminarsandtraining/training-modules/essentials_of_export_controls_modules_1_6.pdf.

A two-page fact sheet focusing on universities, which includes suggested questionnaire content for the new export controls certification, is available at http://xa.yimg.com/kq/groups/15854395/2106905181/name/I-129%20AUECO%20Practice%20Tips.pdf.

A related USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ef1ee46afc5fc210VgnVCM100000082ca60aRCRD&vgnextchannel=e7801c2c9be44210VgnVCM100000082ca60aRCRD.

For additional advice on the new I-129 and deemed export attestations, contact your local Alliance of Business Immigration Lawyers (ABIL) attorney. To locate an ABIL attorney, go to http://www.abil.com/ and click on “ABIL Attorneys” or “Global Attorneys.”

Back to Top

---

3. File H-1B Petitions Now, ABIL Advises; USCIS Plans Proposed Rule to Establish Electronic H-1B Pre-Registration

H-1B filings may increase as the 65,000 numerical limit (cap) approaches. The Alliance of Business Immigration Lawyers (ABIL) recommends filing petitions now. U.S. Citizenship and Immigration Services (USCIS) reports that as of December 17, 2010, 53,900 cap-eligible petitions have been approved or were pending. USCIS has also receipted 19,700 H-1B petitions for individuals with advanced degrees, near that separate cap of 20,000. Once the caps are reached, no new H-1B cap-subject petitions will be accepted until April 1, 2011.

In related news, USCIS plans to propose a rule to establish electronic pre-registration for H-1B petitions. Reportedly, this would mean that an employer would first register online and wait for an H-1B number before filing the full petition with documentation. The idea is to reduce the burden on both employers and the agency in preparing and submitting petitions, entering data, and returning non-selected petitions. Details of the proposed rule and a date of publication have not yet been released.

For advice or help in filing an H-1B petition, contact your local ABIL attorney. To locate an ABIL attorney, go to http://www.abil.com/ and click on “ABIL Attorneys” or “Global Attorneys.” For more on H-1B statistics and filing requirements, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD.

Back to Top

---

4. USCIS Issues Final Rule for CNMI-Only Investor Program

U.S. Citizenship and Immigration Services (USCIS) issued a final rule on December 20, 2010, that creates a nonimmigrant investor visa classification in the Commonwealth of the Northern Mariana Islands (CNMI). The “E-2 CNMI Investor Visa” allows foreign long-term investors to reside in the CNMI through December 2014. Petitions for the E-2 CNMI Investor classification will be accepted beginning January 18, 2011. Petitions received before that date will be rejected.

Authorized by the Consolidated Natural Resources Act (CNRA) of 2008, the E-2 CNMI Investor Visa will be issued for two years, is renewable, and is valid only in the CNMI. The investor’s spouse and children may also apply for status as dependents of the investor.

Long-term investors are individuals with certain CNMI-issued investor permits that required a fixed minimum investment amount and whose permits can be renewed over a period of multiple years.

Those eligible for E-2 CNMI Investor status include long-term business, foreign, and retiree foreign investors. To qualify, the investor must:

• have been admitted to the CNMI with a long-term investor visa under CNMI immigration law before November 28, 2009;
• have continuously maintained residence in the CNMI with long-term investor status;
• currently maintain the investment(s) that formed the basis for the CNMI long-term investor status; and
• otherwise be admissible to the U.S. under the Immigration and Nationality Act.

Investors must file an initial petition before January 18, 2013, and must use the existing Petitioner for a Nonimmigrant Worker, Form I-129, with Supplement E. After the initial petition is granted, extensions are available until December 31, 2014. The processing fee is $325, plus an $85 biometrics fee for certain beneficiaries who require an initial grant of status in the CNMI. Fee waivers for inability to pay are available.

The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-31652.pdf. The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5fb279cebb4fc210VgnVCM100000082ca60aRCRD&vgnextchannel=a2dd6d26d17df110VgnVCM1000004718190aRCRD. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ab3379cebb4fc210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD. For more information, see the CNMI Web page at http://www.uscis.gov/cnmi.

Back to Top

---

5. CBP Expands Global Entry ‘Trusted Traveler’ Program to Mexicans, SENTRI, NEXUS Members

U.S. Customs and Border Protection (CBP) published two Federal Register notices on December 29, 2010, announcing the expansion of Global Entry benefits. One notice extends Global Entry enrollment to eligible Mexican nationals; the other notice extends Global Entry benefits to SENTRI and NEXUS members.

Global Entry is a CBP trusted traveler program that allows pre-approved members an alternative to regular passport processing lines. CBP reports that the program “reduces average wait times by 70 percent while maintaining and enhancing security.”

To become a member of Global Entry, eligible Mexican nationals must complete an online application available at the Global Online Enrollment System (GOES, available at https://goes-app.cbp.dhs.gov/), pay a non-refundable $100 application fee, pass a background investigation conducted by both CBP and the Mexican government, and undergo an in-person interview with a CBP officer at an enrollment center. Mexican nationals must satisfy all requirements of the Global Entry pilot program to become members. CBP began accepting applications from eligible Mexican nationals on December 29.

Also as of that date, SENTRI members may now apply for Global Entry benefits for no additional fee. CBP advises SENTRI members to check their status on the GOES Web site and indicate their wish to use Global Entry. SENTRI members who are Mexican nationals must pass a risk assessment conducted by the Mexican government before receiving full Global Entry benefits.

All NEXUS members will also be able to receive the benefits of Global Entry at no additional cost via automated kiosks at participating airports. CBP advises NEXUS members to check their status in their GOES accounts to confirm whether they need to submit 10 fingerprints or any other necessary documentation to receive Global Entry benefits.

The Global Entry pilot program was launched in 2008 and is available at 20 major airports in the U.S for approved U.S. citizens, lawful permanent residents, and citizens of the Netherlands over 14 years of age who have a valid machine-readable passport and who consent to background screening. To date, Global Entry members have used the kiosks more than 600,000 times, and there are more than 100,000 members in the program.

Global Entry applicants may complete their interview and biometric data collection at enrollment centers at any of the 20 sites. Approved members may use kiosks at any of the sites to complete their CBP processing upon arrival from international travel. At the kiosk, Global Entry members insert their passport or lawful permanent resident card into a document reader, provide digital fingerprints for comparison with fingerprints on file, answer customs declaration questions on the kiosk’s touch screen, and then present a transaction receipt to CBP officers before leaving the inspection area.

CBP has signed arrangements with the governments of the United Kingdom and Germany to reciprocate Global Entry benefits with citizens from their countries.

CBP’s announcement is available at http://www.cbp.gov/xp/cgov/travel/travel_news/global_published.xml. The Federal Register notices are available at http://edocket.access.gpo.gov/2010/pdf/2010-32832.pdf (Mexicans) and http://edocket.access.gpo.gov/2010/pdf/2010-32829.pdf (NEXUS and SENTRI participants).

Back to Top

---

6. USCIS Seeks OMB Approval for New E-Verify Employer Survey

U.S. Citizenship and Immigration Services is seeking Office of Management and Budget (OMB) approval for a new information collection to survey 900 employers about the E-Verify program. The University of Arizona will conduct the survey, and final summary results will be publicly released.

According to a USCIS letter to be sent to potential participating employers, “[t]he goals of the evaluation are to understand the knowledge and perception of the E-Verify program and its utility and barriers to utilization of E-Verify. Congress is interested in this information to help it determine whether E-Verify should be made mandatory for a larger group of employers and, if so, what modifications to the current Program need to be made.”

USCIS’ OMB notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-32546.pdf. The employer letter is available at http://www.regulations.gov/#!documentDetail;D=USCIS-2010-0018-0004. The proposed survey is available at http://www.regulations.gov/#!documentDetail;D=USCIS-2010-0018-0007.

Back to Top

---

7. ABIL Global: Turkey Implements Significant Changes in Work Permit Criteria

Turkey’s Ministry of Labor and Social Security released a communiqué on July 28, 2010, regarding criteria to be considered in adjudicating work permits. The communiqué is pursuant to Article 13 of the Implementation Regulation on the Foreigner’s Work Permit Code (#4817). It is unprecedented for the Ministry to publicly announce concrete details of adjudication factors.

The Ministry indicates in the communiqué that in adjudicating work permits, the following criteria must be met:

1. New 5:1 Ratio: There must be at least five Turkish citizen employees per foreign national applicant, as evidenced on payroll records. (Exception: Newly established legal entities can be founded by a foreign individual. If such an investor owns at least 20 percent (but amounting to no less than Turkish Lira/TRY 40,000 – the current exchange rate is 1.5 TRY to 1 USD) worth of shares of the entity and, within 6 months, the five-employee criterion can be met, a work permit may be approved for the foreign partner/investor.)
2. Capital requirements: The employer’s paid in capital must be at least TRY 100,000. In the alternative, the employer may show gross (assumedly annual) sales amounting to TRY 800,000, or exports with a gross annual value of US $250,000. (Exception: In the case of a nonprofit or private employer, criterion #2 will not apply.)
3. Salary: The foreign employee’s salary must be commensurate with the position offered. More specifically, certain managers, pilots, and engineers/architects and teachers cannot be paid less than a specified amount times the minimum wage. (Gross minimum wage is TRY 760.50 for the period of July 1, 2010, through December 31, 2010.) All others must be paid at least 1.5 times the minimum wage.

The communiqué offers guidance on other professions and workplaces as well.

Additionally, issued in the Official Gazette on July 31, 2010, were changes to the “Application Regulation of Law No. 4817 Related to Work Permits for Foreigners.”

The two most significant amendments specify:

1. Online filing: Work Permit applications must be filed online. The signed application form and supporting documents must be sent to the Ministry within 6 business days from the online application date.
2. Employer’s finances: The Ministry now again requires the prior year’s profit-and-loss statement and balance sheet approved by the certified financial advisor or Tax Office. (This reverses a decision in February 2010 to no longer require them in most cases.)

2010 has seen an unprecedented level of change in Turkish immigration law, both in procedures and details of adjudication criteria. Late in the year, the implementation of the online filing system caused a tremendous increase in adjudication time and formal “requests for further documentation.” It is hoped that in 2011, many of the above changes will be integrated fully so that adjudication will return to a smoother process.

The communiqué is available at http://www.yabancicalismaizni.gov.tr/tr/index.html.

Back to Top

---

8. New Publications and Items of Interest

New E-Verify newsletter. U.S. Citizenship and Immigration Services has published the first issue of E-Verify Connection, available at http://www.uscis.gov/USCIS/Verification/E-Verify/Publications/E-Verify-Connection.pdf.

ICE seeks to remove the wrong people. TRACImmigration reports that immigration courts are rejecting a significant and increasing number of cases in which Immigration and Customs Enforcement (ICE) has sought to remove individuals from the U.S., according to an analysis of recent case-by-case government data. Key findings include:

• During the last three months of fiscal year (FY) 2010, the rejection rate of ICE requests for removal was nearly one out of three, or 31 percent. This turndown rate is up from one out of every four 12 months earlier.
• For all of FY 2010, some courts turned down ICE removal requests more than half of the time. Among them were the immigration courts in New York City (70% turned down), Oregon (63% turned down), Los Angeles (63% turned down), Miami (59% turned down) and Philadelphia (55% turned down).
• Considering the records for the last five years, immigration courts determined that more than a quarter of a million individuals for whom ICE sought removal were entitled to remain in the U.S.

The report is available at http://trac.syr.edu/immigration/reports/243/.

Back to Top

---

9. Member News

Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm) has published a new blog entry, “Obama Is To Blame for the Failure of Immigration Reform,” which argues that the Obama administration and Democrats failed to advocate sufficiently for the DREAM Act. The blog is available at http://musingsonimmigration.blogspot.com/2010/12/obama-is-to-blame-for-failure-of.html.

Mr. Kuck was reported on or quoted recently in the Wall Street Journal (http://online.wsj.com/article/SB10001424052748704098304576021860881102514.html), the Atlanta Journal-Constitution (http://www.ajc.com/news/georgia-politics-elections/georgia-takes-action-on-774349.html), and the PoliJAM Times (http://www.polijam.com/index.php?option=com_content&view=article&id=44338:immigration-crackdown-creates-backlog&catid=53:us&Itemid=29). In the AJC article on proposed Georgia immigration enforcement legislation patterned after the new Arizona law, Mr. Kuck said, “Let’s not get carried away with some plan that doesn’t solve any problems, creates more chaos than it solves, doesn’t have any long-term solution, and they don’t have the money to enforce.”

Ron Klasko’s (bio: http://www.abil.com/lawyers/lawyers-klasko.cfm) firm, Klasko, Rulon, Stock & Seltzer, LLP, has launched a new micro-website with information on non-PERM immigration options and self-petition green cards for scientists, researchers and clinicians. It provides extensive information on Extraordinary Ability (EA), National Interest Waiver (NIW) and Outstanding Researcher/Professor (OR/P) petitions. It also includes information on nonimmigrant visa issues, such as understanding the J-1 home residency requirement and obtaining a waiver, as well as using the O-1 as a bridge to a waiver. The site also provides important information relating to maintaining valid nonimmigrant status while the permanent residence application is pending. See http://www.eb1immigration.com/.

Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm) has published a new blog entry, “Consequences of Visa Bulletin Cutoff Date Retrogression Under the Child Status Protection Act,” which discusses the impact of the retrogression of visa priority dates on those who are near 21 years old. The blog is available at http://cyrusmehta.blogspot.com/2010/12/consequences-of-visa-bulletin-cutoff.html. He also recently co-authored the blog entry, “Keeping Hope Alive: President Obama Can Use His Executive Power Until Congress Passes the DREAM Act,” available at http://cyrusmehta.blogspot.com/2010/12/keeping-hope-alive-president-obama-can.html. Mr. Mehta also co-authored an article, “Keeping Track: Select Issues in Employer Sanctions and Immigration Compliance,” available at http://www.abil.com/articles/ABIL%20Articles%20-%20I-9%20-%20Employer%20Sactions%20&%20Immigration%20Compliance%20(Mehta).pdf.

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm) has published a new blog entry, “The 2010 Nation of Immigrators Awards – The IMMIs,” which takes a look back at “365 days of immigration dysfunction – American style.” The blog is available at http://www.nationofimmigrators.com/?p=375. He also recently published “Immigration DREAMers and the Way Forward: An Open Letter to President Obama,” available at http://www.nationofimmigrators.com/?p=374. Mr. Paparelli may be followed on Twitter at http://twitter.com/angelopaparelli.

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in a December 22, 2010, Reuters article about the EB-5 immigrant investor program. Mr. Yale-Loehr noted that properly administered, the EB-5 program benefits the U.S. and investors in four ways. “No. 1, it’s a win for the U.S. businesses that might not be able to finish a project but for foreign financing…. No. 2, it’s a win for the foreign investor, obviously, because they get a green card out of it. No. 3, it’s a win for the U.S. taxpayer because they are seeing the benefits of an increase in economic activity at no expense … and No. 4, it’s a win for U.S. workers because jobs are being created.” The article is available at http://ca.reuters.com/article/topNews/idCATRE6BL2KJ20101222.

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: 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. DOS Discusses Upcoming Employment Visa Number Priority Cut-Off Dates – It is unlikely that any cut-off dates will be set in the employment first preference during the coming months.

2. USCIS Issues Reminder on New Fees, Q&A on New Fee Schedule; Makes Corrections, Clarifications – The new fee schedule for immigration-related applications and petitions took effect on November 23, 2010.

3. Do’s and Don’ts, Tips on SSN “No-Matches” Released – The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices issued do’s and don’ts for employers and employees on Social Security Number “no-matches”

4. USCIS Revises I-129 Petition Form; Imposes New Export Control Certification – The new version includes fee increases.

5. DOL Hits H-2A Employer With $1.3 Million in Back Wages, $136,500 in Fines – The Department of Labor’s Wage and Hour Division  assessed the fines against a Georgia company for violating provisions of the H-2A temporary agricultural worker program.

6. ABIL Global: Belgian Corporate Immigration – A fast-track work permit can be obtained for, among others, highly skilled personnel and executive-level personnel earning a yearly gross salary exceeding a threshold, adapted on a yearly basis.

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. DOS Discusses Upcoming Employment Visa Number Priority Cut-Off Dates

The Department of State’s Visa Bulletin for December 2010 notes that it is unlikely that any cut-off dates will be set in the employment first preference during the coming months. It also appears unlikely that it will be necessary to establish a cut-off date other than those already in effect for the second preference category. Cut-off dates continue to apply to the China and India employment second preference categories due to heavy demand.

Based on current indications of demand, the Department said the “best case scenarios” for cut-off date movement each month are:

Employment Second:

• China: none to two weeks
• India: no movement

Employment Third:

• Worldwide: three to six weeks
• China: one to three weeks
• India: none to two weeks
• Mexico: although continued forward movement is expected, no specific projections are possible now
• Philippines: three to six weeks

The Department noted that the above ranges are estimates based on current demand patterns, and will be subject to possible fluctuations during the coming months.

The December 2010 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5197.html.

Back to Top

2. USCIS Issues Reminder on New Fees, Q&A on New Fee Schedule; Makes Corrections, Clarifications

The new fee schedule for immigration-related applications and petitions took effect on November 23, 2010. Applications or petitions postmarked or otherwise filed on or after this date must include the new fee or they will be rejected.

USCIS published the new fee schedule in the Federal Register on September 24, 2010, following a review of public comments received after publication of the proposed rule this past summer. The new fee schedule increases application and petition fees by an average of about 10 percent but does not increase the naturalization application fee.

USCIS issued a related Q&A that notes, among other things, that if mailed through a courier service, the date the item is entered into the courier’s service system is considered the postmark date.

Meanwhile, the American Immigration Lawyers Association (AILA) reported on November 19, 2010, that USCIS has confirmed that a receipt notice from a courier service or overnight mailing service will be considered a “postmark” for fee determination purposes.

USCIS has also corrected the new fee for refugee travel documents. As discussed in the preamble to the final rule, the agency had determined that the fee for a refugee travel document for an adult age 16 or older should match the fee charged for the issuance of a passport to a U.S. citizen ($110 plus a $25 execution fee). Accordingly, USCIS intended to reduce the fee for filing an Application for Travel Document, Form I-131, for refugees to $135 for an adult age 16 or older. The final rule inadvertently listed a fee of $165 for the I-131 refugee travel document for an adult age 16 or older. No other changes were made under this correction.

The Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=67b73dc5cb93b210VgnVCM100000082ca60aRCRD&vgnextchannel=5b33aca797e63110VgnVCM1000004718190aRCRD. The USCIS alert is available at http://www.aila.org/content/default.aspx?docid=33665. The correction notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-28719.pdf. A table listing the old and new fees is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=92c5e116de9eb210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-23725.pdf.

Back to Top

3. Do’s and Don’ts, Tips on SSN “No-Matches” Released

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices recently issued the following do’s and don’ts for employers on Social Security Number “no-match” letters. These are letters issued by the Social Security Administration (SSA) to employers stating that information supplied to the SSA does not match SSA records.

DO:

1. Recognize that name/SSN no-matches can result because of simple administrative errors.
2. Check the reported no-match information against your personnel records.
3. Inform the employee of the no-match notice.
4. Ask the employee to confirm his/her name/SSN reflected in your personnel records.
5. Advise the employee to contact the SSA to correct and/or update his or her SSA records.
6. Give the employee a reasonable period of time to address a reported no-match with the local SSA office.
7. Follow the same procedures for all employees regardless of citizenship status or national origin.
8. Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.
9. Submit any employer or employee corrections to the SSA.

DON’T:

1. Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.
2. Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.
3. Attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.
4. Follow different procedures for different classes of employees based on national origin or citizenship status.
5. Require the employee to produce specific documents to address the no-match.
6. Ask the employee to provide a written report of SSA verification.

The document is available at http://www.justice.gov/crt/osc/pdf/publications/SSA/Employers.pdf. A similar document for employees is available at http://www.justice.gov/crt/osc/pdf/publications/SSA/Employees.pdf. A related FAQ is available at http://www.justice.gov/crt/osc/pdf/publications/SSA/FAQs.pdf.

Also, the National Employment Law Project issued “Top 10 Tips for Employers” on Social Security no-match letters. The tips are available at http://www.nilc.org/immsemplymnt/ssa-nm_toolkit/top_ten_tips_11-07-07.pdf, and are linked to a National Immigration Law Center “No-Match Letter Toolkit” available at http://www.nilc.org/immsemplymnt/ssa-nm_toolkit/index.htm.

Back to Top

4. USCIS Revises I-129 Petition Form; Imposes New Export Control Certification

U.S. Citizenship and Immigration Services (USCIS) has issued a new version of the Petition for a Nonimmigrant Worker (Form I-129) to include the new fee increases. USCIS will accept previous versions of the form until December 22, 2010. Beginning on December 23, 2010, USCIS will only accept the revised form and will reject previous versions.

Among other changes, the revised I-129 form requires employers who are sponsoring foreign nationals for certain work visas to certify that they have made an export licensing determination regarding each employee sponsored. More specifically, employers must certify that they have evaluated the applicable export control regulations and have determined whether the employee will require an export license to perform the job.

Under the Department of Commerce’s export control regulations, the release of technical information to a foreign national is deemed an “export” to that person’s country of origin. That remains true even if the foreign national is lawfully employed. Compliance with this “deemed export rule” can be complex. Consult your Alliance of Business Immigration Lawyers attorney to determine how to comply.

Instructions and a link to the revised form (http://www.uscis.gov/files/form/i-129.pdf) are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f56e4154d7b3d010VgnVCM10000048f3d6a1RCRD.

Back to Top

5. DOL Hits H-2A Employer With $1.3 Million in Back Wages, $136,500 in Fines

The Department of Labor’s Wage and Hour Division (WHD) is assessing J&R Baker Farms LLC of Ellenton, Georgia, $1,311,644 in back wages owed to 244 workers and $136,500 in fines for violating provisions of the H-2A temporary agricultural worker program.

WHD found that the vegetable farm allegedly failed to provide at least 75 percent of the hours promised in the work contract. WHD is asking an administrative law judge to order the farm to pay $1,311,644 in back wages to 148 U.S. workers and 96 H-2A workers and pay a fine of $122,000.

The investigation also discovered that the farm failed to provide a copy of the H-2A work contract at the time of recruitment to 29 U.S. workers who performed the same type of work as the H-2A workers. The Department is recommending a fine of $14,500 for that offense.

A press release announcing the findings is available at http://www.dol.gov/opa/media/press/whd/WHD20101532.htm.

Back to Top

6. ABIL Global: Belgian Corporate Immigration

Since September 2009 when the last update on Belgian corporate immigration was published in the ABIL Immigration Insider, Belgian regulations regarding corporate immigration have not been subject to many changes, and the global economic crisis has not led to a change in Belgian corporate immigration legislation.

The rules on the most common work permit, particularly the fast-track work permit B for non EEA[1] highly skilled and executive-level personnel, are summarized below.

1. A fast-track work permit (meaning no resident labor is required) can still be obtained for, among others, highly skilled personnel and executive-level personnel earning a yearly gross salary exceeding a threshold, adapted on a yearly basis:

• To be considered highly skilled, a foreign employee must have received higher education resulting in a degree, and the yearly gross salary must exceed EUR 36,355 (amount for 2010)/EUR 36,604 (amount for 2011);
• Executive-level is legally[1] defined as “the people in charge of the daily management of the company, who are authorised to represent and to bind the employer, as well as personnel, immediately under the authority of the people in charge of daily management, if they also carry out tasks of daily management.” The yearly gross salary must exceed EUR 60,654 (amount for 2010)/EUR 61,071 (amount for 2011).
  [1]    Act of 4 December 2007 with regard to the labor representative elections in 2008.

This fast-track work permit, valid for one year and renewable, is available for employees who meet the above conditions, regardless of whether they are seconded.

It is important to determine what is considered salary:

• Pursuant to Belgian labor law rules, all amounts (e.g., gross wages, commissions, bonuses, premium at the end of the year, single and double holiday pay) paid in consideration for the employee’s work are considered salary;
• Cost-of-living allowances (COLA) (allowances to compensate costs of life in Belgium and/or allowances that aim to reimburse exceptional disbursements, not foreseeable in the employment contract, such as moving costs or school costs) are not considered salary because they do not enrich the employee.

The processing time may vary depending on the place of employment in Belgium (Brussels, Flanders or Wallonia). However, the fast-track work permit can be processed within a short period. Unless the authorities decide they need additional information and/or documentation, the average processing time is two to three weeks. There are no filing fees.

2. Dependents can join a non-EEA work permit holder in Belgium. Spouses and children under 18 are entitled to residence in Belgium. Common-law partners of work permit holders also may be eligible to join their partner in Belgium:

• A “registered partnership, equivalent to marriage in Belgium” entitles a partner to residence in Belgium. The age threshold is 21 or, exceptionally, 18 years. At present, only registered partnerships from Denmark, Finland, Germany, Iceland, Norway, Sweden, and the United Kingdom qualify;
• Non-EEA common law partners may also cohabitate in Belgium provided (i) they enter into a registered partnership in Belgium, (ii) they have a “duly documented durable and stable relationship” for at least one year, (iii) they are both older than 21 (or 18) years, and (iv) they are both neither married nor involved in a durable relationship with another person.

The durability/stability of a relationship may be established as follows:

• The partners can prove they have been living together, prior to the application, for at least one year (i) uninterrupted, (ii) legally, and (iii) in Belgium or abroad; or
• The partners can prove they (i) have known one another for at least one year, (ii) have had frequent contact (by phone, mail, or e-mail), and (iii) have met at least three times before filing the application and that these meetings, all together, took at least 45 days; or
• The partners have a child together.

Proof of sufficient housing in Belgium (registered lease contract or proof of ownership of the house) as well as comprehensive health insurance are required to be entitled to residence as a non-EEA common-law partner.

3. If a common-law partner is entitled to join his or her partner who holds a Belgian work permit, he or she is eligible for a fast-track work permit, as are spouses.

As a matter of fact, a spouse of a non-EEA national who holds a Belgian work permit is eligible for a fast-track work permit. Circular Letter of 17 December 2008 clarifies that the reference to “spouse” also includes “registered partners,” who are entitled to reside in Belgium.

[1]    EEA = European Economic Area, consisting of the 27 Member States of the European Union, Iceland, Liechtenstein and Norway. EEA nationals (apart from, until December 31, 2011, Bulgarian and Romanian nationals) are exempt: they can work without a Belgian work permit.

Back to Top

7. New Publications and Items of Interest

Foreign student enrollment increases; mostly from China. The Institute of International Education, with support from the Department of State, released Open Doors Report on International Educational Exchange 2010, which notes that foreign student enrollments in the U.S. increased by 3 percent, to 690,923 students, during the 2009-2010 academic year. This year’s growth was primarily driven by a 30% increase in Chinese student enrollment in the United States to a total of nearly 128,000 students, or more than 18% of the total international student population. This makes China the leading sending country, the report said. Students from India increased by 2% to a total of nearly 105,000. Indian students represent 15% of all international students in U.S. higher education. The most notable decline was in Japanese students.

California was the top host state, and New York City was the top host city. Business and management, and engineering, remained the top two fields of study.

NAFSA: Association of International Educators and several other entities recently conducted a “snapshot” online survey on related issues. The survey asked educators to indicate whether they had seen a change in new enrollments from selected sending countries. The results indicate that new enrollments from China are increasing significantly, with 58% of institutions reporting increases and only 14% reporting declines (the rest reported level enrollments).

A press release that includes a discussion of the results, and related links, is available at http://www.iie.org/en/Who-We-Are/News-and-Events/Press-Center/Press-Releases/2010/2010-11-15-Open-Doors-International-Students-In-The-US.

Back to Top

8. Member News

Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm) was interviewed on Fox Atlanta’s Immigration Hour, on November 15, 2010. Mr. Kuck noted that states can’t afford to solve immigration issues on their own. A video of the interview is available at http://www.myfoxatlanta.com/dpp/news/newsmaker-georgia-immigration-reform-111510?CMP=201011_emailshare.

Sharon Mehlman (bio: http://www.abil.com/lawyers/lawyers-mehlman.cfm) is speaking on December 1, 2010, at the 13^th Annual American Immigration Lawyers Association’s New York Chapter Symposium in New York City. The panel is “RFEs – Engaging the Service Centers.”

Cyrus Mehta’s (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm) latest blog entry, “BALCA’s New Decision in Denzil Gunnels Opens the Door to Submit More Evidence Following a Labor Certification Denial,” is available at http://cyrusmehta.blogspot.com/2010/11/balcas-new-decision-in-denzil-gunnels.html.

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm) recently spoke, along with Immigration Judge Denise Slavin, at the Berkeley Institute of Journalism on the issue of labor shortages and skills mismatches, including the “misguided approach to labor market testing adopted by the DOL requiring the employer to prove a negative” (the unavailability of able, qualified, and willing U.S. workers) and the need instead for the Department of Labor to declare additional labor shortage occupations on Schedule A of its PERM regulations. Information on the seminar, “The Changing Face of America: Going Beyond the Rhetoric on Immigration,” is available at http://journalism.berkeley.edu/conf/2010/immigration/.

Mr. Paparelli also released two new blog entries: “Do Touch the Immigration Junk – And Turn It Into DREAMs,” available at http://www.nationofimmigrators.com/?p=370, and “Two Sides of Immigration Exceptionalism: Of WikiLeakers and DREAMers,” available at http://www.nationofimmigrators.com/?p=371.

Bernard Wolfsdorf (bio: http://www.abil.com/lawyers/lawyers-wolfsdorf.cfm) was quoted in the Wall Street Journal on November 22, 2010, in an article about the diversity visa lottery. “It shows that the U.S. immigration system doesn’t make sense,” he said. “We are allocating visas based on luck instead of knowledge.”

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) spoke at the National Press Club in Washington, DC, on November 15, 2010, about the prospects for immigration reform in the next two years. A podcast of the talk is available at http://www.lexisnexis.com/COMMUNITY/EMERGINGISSUES/blogs/focusonimmigration/archive/2010/11/19/mired-in-immigration-misery-can-the-brand-new-congress-create-fair-law.aspx.

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