Headlines:

1. WHD Plans Nationwide Audit of Independent Contractor Misclassifications – Targeted industries may include may include agriculture, construction, distribution, food processing, hospitality, janitorial services, landscaping, manufacturing, restaurants, and sanitation.

2. District Court Finds NY Education Law Limiting Pharmacist Licenses to U.S. Citizens, LPRs Unconstitutional – A New York education law was found unconstitutional because it violated the plaintiffs’ rights under the Equal Protection Clause of the U.S. Constitution and encroached on federal immigration authority.

3. USCIS Designates Two AAO Decisions As Binding Precedent – The first decision holds that an employment-based petition must be “valid” initially if it is to “remain valid with respect to a new job,” and the second clarifies the definition of employment by an “American firm or corporation.”

4. State Dept. Seeks OMB Approval, Comments on Exchange Visitor Program Annual Reports – Annual reports will be submitted to DOS electronically “as soon as the mechanism for doing so is approved and in place.”

5. USCIS Opens New Office in Holtsville, Long Island – The full-service office has the capacity to serve approximately 400 residents of Nassau, Suffolk, and Queens Counties per day, including fingerprinting.

6. ABIL Global: India Changes Work-Related Visa Rules – In an effort to protect India’s non-technical workers and attract highly skilled foreign workers, the Indian Ministry of Home Affairs has issued an order and released a new FAQ.

7. ABIL Global: Canadian Regulatory Changes Will Affect Canadian Employers, Temporary Foreign Workers – Various changes to Canada’s Immigration and Refugee Protection Regulations will take effect on April 1, 2011, affecting both Canadian employers and their temporary foreign workers.

8. Member News – Member News

9. Government Agency Links – Government Agency Links

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Details:

1. WHD Plans Nationwide Audit of Independent Contractor Misclassifications

The Department of Labor’s Wage and Hour Division (WHD) reportedly plans a nationwide audit this fall of misclassifications of employees as independent contractors, and U.S. Immigration and Customs Enforcement sent notices of inspection to employers nationwide in September 2010. WHD and ICE are working together on the independent contractor issue, and some analysts believe that WHD may be providing leads to ICE on potential Fair Labor Standards Act violators.

It is unclear which industries are targeted, but it is expected that they may include agriculture, construction, distribution, food processing, hospitality, janitorial services, landscaping, manufacturing, restaurants, and sanitation, according to the Society for Human Resource Management.

The Alliance of Business Immigration Lawyers (ABIL) recommends preparing for audits in advance and contacting your ABIL member for guidance on how to classify workers as employees or independent contractors, and how to conduct an internal audit to correct errors or omissions in I-9 work authorization verification forms and other relevant documentation.

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2. District Court Finds NY Education Law Limiting Pharmacist Licenses to U.S. Citizens, LPRs Unconstitutional

The U.S. District Court for New York ruled in a consolidated case on September 29, 2010, that a New York education law was unconstitutional because it violated the plaintiffs’ rights under the Equal Protection Clause of the U.S. Constitution and encroached on federal immigration authority.

The plaintiffs were 26 otherwise qualified pharmacists with temporary authorization to work in the U.S. Twenty-two of them had obtained H-1B visas. Most had applied for permanent residence and all had remained in the U.S. in compliance with federal immigration laws while their cases were pending. New York Education Law § 6805(1)(6) provides that “[t]o qualify for a pharmacist’s license, an applicant shall…be a United States citizen or an alien lawfully admitted for permanent residence in the United States.” The law excludes, among others, those who have received federal authorization to work in the U.S. temporarily.

Among other things, the court said:

The theory is that courts must be wary of state laws that exploit aliens’ political powerlessness by denying them the fruits of their societal contributions. Here, the State does not explain why this theory would apply any less to nonimmigrants, who also work, pay taxes, contribute to society, and have no political voice while they remain in this country. At one point, the State seems to suggest that non-LPR classifications should not receive strict scrutiny because non-LPRs have a different “constitutional status” by virtue of their weaker ties to the country….But what does it mean to say that nonimmigrants have a different “constitutional status” than LPRs, or that nonimmigrants “need not” be protected to the same extent as LPRs? The Supreme Court has already established that all aliens, even undocumented aliens, have rights under the equal protection clause.

The court pointed out that New York purported to ameliorate the dangers posed by transient or judgment-proof pharmacists through § 6805(1)(6), which was aimed at only a tiny subclass of pharmacists, instead of imposing generally applicable insurance or similar malpractice-related requirements upon the entire profession. The state also did not put forth any evidence that transience among New York pharmacists threatened public health or that nonimmigrant pharmacists, as a class, were considerably more transient than LPR and U.S. citizen pharmacists. As a consequence, the court said, the law did nothing to reduce the dangers of transience among citizen and LPR pharmacists while at the same time excluding longtime nonimmigrant residents, many of whom will become LPRs as soon as their pending green card applications are processed. “The question is not close; under any form of heightened scrutiny, § 6805(1)(6) fails,” the court concluded.

The decision is available at http://engnishimura.com/files/PhamacistLawUnconstitutional.pdf.

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3. USCIS Designates Two AAO Decisions As Binding Precedent

U.S. Citizenship and Immigration Services (USCIS) announced on October 20, 2010, that it has issued two decisions from the Administrative Appeals Office (AAO) as binding precedent for the agency.

The first decision, Matter of Al Wazzan, affirms USCIS’s denial of an application to adjust status to permanent residence and holds that an employment-based petition must be “valid” initially if it is to “remain valid with respect to a new job.” The second decision, Matter of Chawathe, reverses USCIS’s denial of an application to preserve residence for naturalization purposes and clarifies the definition of employment by an “American firm or corporation.”

Matter of Al Wazzan states that to be considered “valid,” a petition must have been filed for a person who is entitled to the requested classification and a USCIS officer must have approved the petition. An unadjudicated immigrant visa petition is not made “valid” merely through the act of filing the petition with USCIS or through the passage of 180 days, even though the law states that an employment-based immigrant visa petition remains valid with respect to a new job if the beneficiary’s application for adjustment of status has been filed and remains unadjudicated for 180 days.

Matter of Chawathe states that for purposes of establishing the requisite continuous residence in naturalization proceedings, a publicly held corporation may be deemed an “American firm or corporation” if the applicant establishes that the corporation is both incorporated in the U.S. and trades its stock exclusively on U.S. stock exchange markets. The decision also states that when an applicant’s employer is a publicly held corporation incorporated in the U.S. and trading its stock exclusively on U.S. stock markets, the applicant need not demonstrate the nationality of the corporation by establishing the nationality of those persons who own more than 51 percent of the stock of that firm. The decision further states that even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “more likely than not” or “probably” true, the applicant has satisfied the standard of proof. If the director can articulate a material doubt, he or she may request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, may deny the application or petition, the decision states.

Matter of Al Wazzan is available at http://www.justice.gov/eoir/vll/intdec/vol25/3699.pdf, and Matter of Chawathe is available at http://www.justice.gov/eoir/vll/intdec/vol25/3700.pdf.

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4. State Dept. Seeks OMB Approval, Comments on Exchange Visitor Program Annual Reports

The Department of State (DOS) has sent for Office of Management and Budget (OMB) approval a notice and request for comments on annual reports required from designated exchange visitor program sponsors to assist DOS in overseeing and administering the J-1 visa program. The reports provide statistical data on the number of exchange participants an organization has sponsored per category of exchange, a summary of the activities in which exchange visitors were engaged, and an evaluation of the program’s effectiveness. Program sponsors include government agencies, academic institutions, and private sector not-for-profit and for-profit entities. The estimated number of respondents annually is 1,460.

Annual reports are completed through the Student and Exchange Visitor Information System (SEVIS), printed and signed by a sponsor official, and sent to DOS by mail or fax. DOS said it is working with the Department of Homeland Security (DHS) to expand SEVIS functions and enable the collection of electronic signatures. Annual reports will be submitted to DOS electronically “as soon as the mechanism for doing so is approved and in place,” the agency said. DHS announced a delay in implementing SEVIS II in April 2010. Phase one, the creation of customer accounts and the migration of school and sponsor records, was planned to start in March 2010, and phase two, full operating capability, was planned to deploy in October. DHS said a final decision on the schedule has not been reached, but confirmed that SEVIS II will not be deployed this year.

Comments or requests for additional information may be sent to the offices listed in the OMB notice, which is available at http://edocket.access.gpo.gov/2010/pdf/2010-26381.pdf. For details on the SEVIS II delay, see http://www.ice.gov/sevis/sevisii/sevisii_update_032010.htm.

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5. USCIS Opens New Office in Holtsville, Long Island

U.S. Citizenship and Immigration Services (USCIS) recently announced the opening of a new full-service field office in Holtsville, Long Island, New York. The office has the capacity to serve approximately 400 residents of Nassau, Suffolk, and Queens Counties per day, including fingerprinting.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=22a20d1fd9bab210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. ABIL Global: India Changes Work-Related Visa Rules

In an effort to protect India’s lesser skilled workers and attract highly skilled foreign workers, the Indian Ministry of Home Affairs (MHA) has issued an order and released a new FAQ (frequently asked questions) document stating that employment visas are intended for foreigners desiring to come to India to work if the applicant is a highly skilled and/or qualified professional engaged or appointed by a company, organization, or industry undertaking in India on a contract or employment basis.

Employment visas will not be granted for positions for which qualified Indians are available, the FAQ states. Also, employment visas will not be granted for “routine, ordinary or secretarial/clerical jobs.” The foreign national must seek to visit India for employment in a company, firm, or organization registered in India or for employment in a foreign company, firm, or organization engaged in the “execution of some project in India.” Further, the FAQ states, the foreign national being sponsored for an employment visa in any sector should draw a salary above US $25,000 per year, with the exception of ethnic cooks, language teachers (other than English) and translators, and staff working for the “concerned Embassy/High Commission in India.”

The MHA also has announced the elimination of the prior maximum of 1% of the total workforce, or up to 20, for each Indian company that sponsors foreign workers.

The employment visa must be issued from the country of origin or country of domicile of the foreigner, provided the period of permanent residence of the applicant in that country is more than 2 years.

Documentation pertaining to the proposed employment, such as registration of the company under the Companies Act, proof of registration of the firm in the State Industries Department or the Export Promotion Council concerned, or any recognized promotional body in the field of industry and trade, will be reviewed to decide the category of visa that may be issued.

The name of the sponsoring employer or organization must be clearly stipulated in the visa sticker.

The following categories of foreign nationals are also eligible for employment visas provided they meet the basic conditions for an employment visa:

(i)         Foreign nationals coming to India as consultants on a contract for whom the Indian company pays a fixed remuneration (this may not be in the form of a monthly salary).

(ii)        Foreign artists engaged to conduct regular performances for the duration of an employment contract given by hotels, clubs, or other organizations.

(iii)       Foreign nationals coming to India to take up employment as coaches of national or state-level teams or reputed sports clubs.

(iv)       Foreign sportsmen who are given contracts for a specified period by Indian clubs or organizations.

(v)        Self-employed foreign nationals coming to India for providing engineering, medical, accounting, legal or other such highly skilled services in their capacity as independent consultants, provided the provision of such services by foreign nationals is permitted under law.

(vi)       Foreign language teachers and interpreters.

(vii)      Foreign specialist chefs.

(viii)      Foreign engineers or technicians coming to India to install and commission equipment, machines, or tools under the terms of a contract for the supply of such equipment, machines, or tools.

(ix)       Foreign nationals deputed for providing technical support or services, or transfer of know-how or services, for which the Indian company pays fees or royalties to the foreign company.

Regarding the duration of the employment visa, the rules have different validity dates depending on the employment arrangement. These are summarized as follows:

(i) A foreign technician/expert coming to India under a bilateral agreement between the Indian government and the foreign government, or pursuant to a collaboration agreement that has been approved by the Indian government, may be granted a multiple employment visa for the duration of the agreement, or for a period of five years, whichever is less.

(ii) Highly skilled foreign personnel being employed in the IT software and IT-enabled sectors may receive a multiple entry employment visa with a validity of up to three years or for the term of assignment, whichever is less.

Applicants who are not covered under any of these two arrangements may obtain a multiple entry employment visa for up to two years or the term of assignment, whichever is less.

Finally, the rules provide for extensions beyond the initial visa validity period, up to a total period of five years from the date of issue of the initial employment visa, on a year-to-year basis, subject to the individual’s good conduct, production of necessary documents in support of continued employment, filing of income tax returns and to there being no adverse security inputs relating to the foreign national. The period of extension shall not exceed five years from the date of issue of the initial employment visa.

The FAQ, which contains additional details on business and work-related visas issued by India, is available at http://www.mha.nic.in/pdfs/work_visa_faq.pdf.

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7. ABIL Global: Canadian Regulatory Changes Will Affect Canadian Employers, Temporary Foreign Workers

Various changes to Canada’s Immigration and Refugee Protection Regulations will take effect on April 1, 2011, affecting both Canadian employers and their temporary foreign workers. These changes are intended to:

• Reduce the opportunity for exploitation of temporary foreign workers by employers and third-party agents;
• Ensure greater employer accountability mechanisms, including a denial of service provision, thereby encouraging greater adherence by employers to the terms and conditions of their job offers with respect to wages, working conditions and occupations; and
• Clarify that employment facilitated through the Temporary Foreign Worker Program is meant to be temporary in nature.

The changes include:

Rigorous assessment of the genuineness of the employment offer. The amendments establish specific factors to assess the genuineness of an employer’s offer of employment to a foreign worker both in Labour Market Opinion (LMO) cases and in LMO-exempt cases. These factors include:

• Whether the offer is made by an employer that is actively engaged in the business with respect to which the offer is made;
• Whether the offer is consistent with reasonable employment needs of the employer;
• Whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
• The past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

Ban on employers for noncompliance with a previous LMO. The amendments will render an employer ineligible to seek a work permit on behalf of a foreign worker unless, during the period beginning two years before the initial request for an LMO is made to Service Canada or, in the case of an LMO-exempt work permit, beginning two years before the work permit application is received by Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency (CBSA):

• The employer provided each of its foreign workers with wages, working conditions and employment consistent with the wages, working conditions and occupation set out in the employer’s offer of employment; or the failure to do so was justified.

Justifications include:

• A change in federal or provincial law;
• A change in the provisions of a collective agreement;
• The implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer;
• An error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error;
• An unintentional accounting or administrative error made by the employer, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error; or
• Circumstances similar to those set out above.

The assessment is undertaken when a new LMO is requested or, in the case of an LMO-exempt work permit application, when the work permit application is received by CIC/CBSA. Employers must review all LMO applications to ensure compliance during the two-year period preceding April 2011. An internal immigration audit is recommended.

List of banned employers posted on CIC Web site. The amendments authorize CIC to maintain a list of banned employers on its Web site, listing the names and addresses of each employer and the date that the determination was made. Service Canada will not issue an LMO and CIC/CBSA will not issue a work permit for any employer on the list.

Four-year cap for most temporary foreign workers. The amendments provide for a cumulative four-year cap for most foreign workers. However, exemptions from the four-year cap exist in the following situations:

• The foreign worker intends to perform work that would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents. Therefore, work permits based on LMO exemptions, such as significant benefit to Canada and intra-company transferees, along with other LMO exemptions, will be exempt from the four-year cap.
• The foreign worker intends to perform work pursuant to an international agreement between Canada and one or more countries. Work permits issued under international agreements such as the North American Free Trade Agreement, the General Agreement on Trade in Services, the Canada-Chile Free Trade Agreement, or the Peru Free Trade Agreement will be exempt from the four-year cap.
• A foreign worker who has reached the four-year cap is not necessarily required to leave Canada. However, the foreign worker would not be eligible for a work permit even under another category. He or she may be permitted to apply for status under a non-work category such as that of a visitor or student.

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8. Member News

Klasko, Rulon, Stock & Seltzer received the highest ranking (Tier 1) for the Immigration Law category in both New York and Philadelphia in the first-ever U.S. News and World Report “Best Law Firm” rankings. See http://bestlawfirms.usnews.com/. H. Ronald Klasko (bio: http://www.abil.com/lawyers/lawyers-klasko.cfm) is a member of the Alliance of Business Immigration Lawyers.

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm) recently posted a new blog entry, “The Immigration Log In Our Eyes.” The blog is available at http://www.nationofimmigrators.com/?p=359.

Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm) recently posted a new blog entry, “What Is Going On in Nevada With Immigration?” The blog is available at http://musingsonimmigration.blogspot.com/2010/10/what-is-going-on-in-nevada-with.html.

Mr. Kuck recently conducted a radio interview with Mr. Paparelli about the immigration system. The interview is available at http://www.radiosandysprings.com/podcasts/ImmigrationHourOct26.2010.mp3.

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) will speak about  the prospects for immigration reform after the mid-term elections at 1:30 p.m. on November 15, 2010, at the National Press Club in Washington, DC.

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9. Government Agency Links

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

USCIS Service Center processing times online: 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

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Headlines:

1. USCIS Raises Many Fees, Adds New Fees – Among other things, USCIS is raising fees for most immigration benefits by a weighted average of 10 percent, establishing several new fees, and raising the premium processing service fee.

2. 2012 Diversity Visa Lottery Program Registration Begins in October – The Department of State strongly encourages applicants not to wait until the last week of the registration period to enter, because heavy demand may result in online delays and missing the deadline.

3. DOS Solicits Comments on Nonimmigrant Treaty Trader/Investor Application – The Department of State has submitted the Nonimmigrant Treaty Trader/Investor Application to the OMB for approval to extend its validity, and seeks public comments for up to 30 days from September 23, 2010.

4. FY 2011 Visa Numbers Available on October 1, 2010; DOS Updates China Reciprocity Schedule – Visa numbers once again are available for many categories as of October 1; the Department amended its visa reciprocity schedule for China to allow for 12-month multiple-entry visas for H visa applicants.

5. DOS Issues Travel Warning for Mexico – The Department has issued a travel warning for Mexico in response to the deteriorating security situation there; as of September 10, 2010, the Consulate General in Monterrey is a partially unaccompanied post.

6. ABIL Global: Repercussions of the Global Economic Crisis on Mexican Immigration Policies – Immigration authorities have become stricter in their adherence to a law that regulates the proportion of Mexican and foreign employees in a company legally established in Mexico.

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

8. Member News – Member News

9. Government Agency Links – Government Agency Links

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Details:

1. USCIS Raises Many Fees, Adds New Fees

In a final rule effective November 23, 2010, U.S. Citizenship and Immigration Services (USCIS) is making changes to its fee structure. Applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010, must include the new fees.

Among other things, USCIS is raising fees for most immigration benefits by a weighted average of 10 percent, establishing several new fees, and raising the premium processing service fee. An application to replace a green card will cost $365 instead of $290; an immigrant petition for alien worker will cost $580 instead of $475; and an application for employment authorization will cost $380 instead of $340.

The premium processing fee will increase from $1,000 to $1,225. There will be a new fee for a civil surgeon designation of $615, and a new fee of $6,230 for an application for a regional center designation under the EB-5 immigrant investor pilot program.

USCIS noted that most EB-5-related comments the agency received in response to the proposed rule acknowledged the need for a regional center designation fee. The commenters expressed support for the fee, USCIS said, while also noting the need for improvements in processing times, collaborative efforts, and regulatory development. USCIS said it “continues to strive for improved processing times, has committed to improved stakeholder communications with quarterly stakeholder meetings, and will pursue regulatory development when practical.”

Several commenters on the proposed rule expressed concern that USCIS would raise fees during a time when many employment-based adjustment of status filers are experiencing long waits for their visas. USCIS attributed these long waits to visa retrogression in oversubscribed categories, noting that some have attributed it to USCIS processing inefficiencies and questioned a fee hike in the face of such delays. Others have attributed the long waits to the mismanagement of the visa allocation and coordination process between USCIS and the Department of State (DOS), and noted that many numerically limited visa numbers have gone unused.

USCIS said the notion that processing inefficiencies contribute to the long wait for visas “appears unfounded,” citing an average processing time of four months for an Application to Register Permanent Residence or Adjust Status, Form I-485. “This timeframe meets the processing goal set forth in the 2008/2009 fee rule,” USCIS said, adding that “[s]ignificant improvements have also been made in the visa coordination process between DOS and USCIS.” USCIS said that it confers with DOS monthly on pending visa demand, workload capabilities, and forecasting immigration trends. For example, USCIS noted, if its analysis finds a period of low demand in a particular visa preference category, DOS is able to respond by advancing the priority dates rapidly to ensure that all allotted visas will be used in a particular fiscal year. “USCIS and DOS continue to consider ideas and options to further improve the visa coordination process between the two and reduce the occurrence of visa retrogression or future unused numbers,” USCIS said.

Some commenters also suggested that USCIS recapture unused visa numbers from recent years as a way to reduce the backlog of pending adjustment of status cases. By recapturing these numbers, they suggested, visa priority cut-off dates would advance, allowing for many new filings and thereby increasing USCIS revenue without a need to raise fees. USCIS noted, however, that the authority to recapture any unused visa numbers from previous years resides with Congress and is not available to USCIS as an administrative remedy. Moreover, increasing the number of filings concurrently increases the amount of work to be performed, thus consuming the fees generated. “Even if legally possible, this solution would not be practical,” USCIS said.

Due to the long wait for visa numbers in particular categories, several commenters disagreed with a fee hike because costs would rise for intending immigrants either seeking to maintain their status in the U.S. or receiving ongoing interim benefits while awaiting visa numbers. USCIS noted, however, that U.S. employers may not recoup the costs required to file for a nonimmigrant employee or his or her extension or change of status; thus, the costs are borne by the employer and not the intending immigrant seeking to maintain status. Furthermore, USCIS said, applicants for adjustment of status who request advance parole and employment authorization are exempt from payment of additional fees while their I-485s are pending.

USCIS said it acknowledges that employment-based I-485 filers who filed under the old fee structure, before August 18, 2007, must continue to pay fees associated with interim benefits. USCIS noted that it has no control over DOS’s allocation of visa numbers or the yearly visa numerical limits established by Congress, but said the agency is “sympathetic to those who have pending adjustment of status applications in categories experiencing extreme visa retrogression.” To alleviate the burden, USCIS initiated a policy in June 2008 of a two-year validity period on employment authorization documents for these affected individuals, “effectively reducing ongoing costs for the benefit by an estimated 50 percent.” USCIS said it is further adopting a policy whereby “those same affected individuals may receive an advance parole document with a two-year validity period to further alleviate their filing burdens. The number of filers affected by FY 2007 visa retrogression continues to decline as visa numbers are allocated.”

One commenter suggested the creation of a variable fee structure depending on the wait for a visa number. USCIS said this would be impractical.

A number of commenters requested that USCIS offer multi-year employment authorization documents (Forms I-765) and travel documents (Forms I-131). Commenters cited the financial burden of submitting multiple applications for both services while their adjustment of status cases are pending. Some commenters also mentioned the administrative burden created when trying to time the filing of the documents so as not to produce instances of overlapping validity.

USCIS said it “has no interest in artificially limiting the validity periods of these documents,” pointing out that in many instances, these validity periods are directly related to the length of the underlying status that created eligibility for the associated benefits. “For example, a permanent resident who remains outside the United States for more than one year may be questioned on his or her return based on the validity of his or her Permanent Resident Card, Form I-551,” USCIS noted. “If that individual applied for a reentry permit before departure from the foreign country, and the application is granted, then the one-year validity of the Form I-551 is extended to two years.” USCIS noted that the current two-year validity of the reentry permit matches this period. Issuing it for a longer validity period “could create confusion and result in some permanent residents remaining abroad for too long and potentially jeopardizing their status. The validity period of a travel document or EAD is generally linked to the validity period of the relating immigration status.”

The final rule, which contains a table showing the fee changes and additional details on how the new fees were calculated, is available at http://edocket.access.gpo.gov/2010/pdf/2010-23725.pdf. A related announcement, fact sheet, and Q&A are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=53173dc5cb93b210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5be73dc5cb93b210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD, and http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=67b73dc5cb93b210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD, respectively.

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2. 2012 Diversity Visa Lottery Program Registration Begins in October

The online registration period for the DV-2012 diversity visa lottery begins at 12 noon eastern time, Tuesday, October 5, 2010, and ends at 12 noon eastern time, Wednesday, November 3, 2010. The Department of State strongly encourages applicants not to wait until the last week of the registration period to enter, because heavy demand may result in online delays and missing the deadline.

For DV 2012, entrant notification will be through the Entry Status Check at http://www.dvlottery.state.gov. Entrants selected will receive further instructions in the mail, including information on fees connected with immigration to the U.S. The “Selection of Applicants” section in the instructions provides information about the DV timeframe and process.

The Department’s announcement notes that there have been instances of fraudulent Web sites posing as official U.S. government sites. Also, some companies posing as the U.S. government have sought money in order to “complete” lottery entry forms. “There is no charge to download and complete the Electronic Diversity Visa Entry Form. The Department of State notifies successful Diversity Visa applicants by letter, and NOT by e-mail,” the announcement notes.

The announcement, with links to the instructions and to DV-2010 and DV-2011 results, is available at http://travel.state.gov/visa/immigrants/types/types_1322.html. The instructions are available at http://travel.state.gov/visa/immigrants/types/types_1318.html.

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3. DOS Solicits Comments on Nonimmigrant Treaty Trader/Investor Application

The Department of State has submitted the Nonimmigrant Treaty Trader/Investor Application (DS-156E) to the Office of Management and Budget for approval to extend its validity, and seeks public comments for up to 30 days from September 23, 2010. Copies of the document may be obtained from Stefanie Claus, Office of Visa Services, U.S. Department of State, 2401 E Street, NW, L-603, Washington, DC  20522; telephone (202) 663-2910. Comments should be submitted by one of the methods set forth in the notice, which appears at http://edocket.access.gpo.gov/2010/pdf/2010-23811.pdf.
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4. FY 2011 Visa Numbers Available on October 1, 2010; DOS Updates China Reciprocity Schedule

The Department of State sent a memorandum to USCIS on September 15, 2010, noting that effective September 16, there would be no further authorizations of visa numbers for any family preference category, or for employment second, third, third “other workers,” fourth, and fourth “certain religious worker” cases for the remainder of fiscal year (FY) 2010. Numbers once again are available for all of these categories as of October 1, 2010, under the FY 2011 annual numerical limitation. The memo stated that USCIS could continue to process the cases received and that they would be held in the Visa Office’s “Pending Demand” file. “All eligible pending demand cases will be automatically authorized based on the FY-2011 cut-off dates which are announced.”

Also, the Department amended its visa reciprocity schedule for China to allow for 12-month multiple-entry visas for H visa applicants instead of the previous 3-month, 2-entry visa. The updated reciprocity schedule and guide for China is available at http://travel.state.gov/visa/fees/fees_4881.html?cid=3537.

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5. DOS Issues Travel Warning for Mexico

The Department of State issued a travel warning on September 10, 2010, to inform U.S. citizens traveling to and living in Mexico about the security situation there. Among other things, the status of authorized departure of family members of U.S. government personnel from U.S. Consulates in the northern Mexico border cities of Tijuana, Nogales, Ciudad Juarez, Nuevo Laredo, Monterrey, and Matamoros ended on September 10 following the expiration of the maximum 180-day period. Based on a security review in Monterrey following an August shooting in front of the American Foundation School in Monterrey and the high incidence of kidnappings in the Monterrey area, U.S. government personnel from the Consulate General have been advised that the immediate, practical, and reliable way to reduce the security risks for all children is to remove them from Monterrey. As of September 10, 2010, the Consulate General in Monterrey is a partially unaccompanied post, meaning no minor dependents of U.S. government employees are permitted to remain in the city. This travel warning supersedes the warning for Mexico dated August 27, 2010, to note the lifting of Authorized Departure status for U.S. Consulates along the U.S.-Mexico border.

The warning, which discusses many other details about the security situation in Mexico and along the border, is available athttp://travel.state.gov/travel/cis_pa_tw/tw/tw_4755.html.

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6. ABIL Global: Repercussions of the Global Economic Crisis on Mexican Immigration Policies

Due to Mexico’s close interconnection with the United States, the economic crisis has begun to have a significant and profound effect on the domestic economy in Mexico. There have been no specific changes in the immigration laws in Mexico thus far; however, immigration authorities have become stricter in their adherence to one immigration law in particular that regulates the proportion of Mexican and foreign employees in a company legally established in Mexico.

The number of foreign employees in a company in Mexico is regulated by the corresponding legal immigration guidelines. This restriction is established in Article 7 of the Federal Labor Law, which is also supported by Article 123(A) of the Mexican Constitution regarding the rights and obligations of employees. This legal disposition restricts the percentage of foreigners working in a company to a maximum of 10 percent of the total workforce to allow for greater job opportunities for Mexican personnel in areas such as industrial production and other business sectors. Under these terms, a company or establishment’s workers must be 90 percent Mexican.

Some important points to highlight include:

1. In the technician and professional categories, all workers must be Mexican, except when Mexican personnel with a particular specialization are not available. Under this scenario, foreigners may be authorized on a temporary basis in a proportion that does not exceed 10 percent of such specialists.
2. The supervisor and foreign workers must have a sole obligation to the Mexican workers in such areas of specialization. The purpose of this policy is to train Mexican personnel in areas in which they do not have expertise or knowledge. In this manner, the domestic trained labor force is expected to grow and to continue to become more specialized in coordination with the foreign labor force.
3. Medical doctors who provide their services to companies in Mexico must all be Mexican.
4. All directors, administrators, and general managers are exempt from inclusion in the total computation of the proportion of Mexican to foreign workers. This is because these positions are considered to be key positions and essential to the development of business for the company in Mexico.

Mexican immigration authorities are very particular about the application of this immigration policy, now more than ever. Currently, they allow no flexibility in the percentages mentioned in this article. The main purpose of this regulation is to protect the domestic labor force from being displaced in a disproportionate manner by the foreign work force, especially in these times of economic uncertainty.

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7. New Publications and Items of Interest

THOMAS enhancements. THOMAS has undergone its third major enhancement of 2010. The latest enhancements add a mobile-friendly homepage, integrate features from the Library of Congress and Law Library of Congress websites into THOMAS, and add a new portal to state legislature websites at http://thomas.loc.gov/home/state-legislatures.html, which displays a map with links to the legislative bodies for all 50 states; Washington, DC; and U.S. territories. THOMAS also includes the status of bills and resolutions in the U.S. Congress, summaries, and full text; activity in Congress; the Congressional Record; schedules and calendars; committee information; presidential nominations; treaties; government resources; and information for teachers. For more on THOMAS, see http://thomas.loc.gov/home/abt_thom.html.
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8. Member News

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm) recently wrote a letter on employment-based immigration proposals that had been discussed in an editorial published in the New York Times on September 14, 2010. He noted that “[i]ncreasing the cost of entry through exorbitant user fees or auctions will dissuade American employers and talented foreign workers. It will only cause more jobs to be outsourced and more foreign workers to stay away.” The letter, published on September 15, is available at http://www.nytimes.com/2010/09/22/opinion/l22immig.html?_r=2&ref=opinion.

Mr. Paparelli also has posted several new blog entries: “Immigration Innocents and the Dream Act: An Open Letter to Glenn Beck,” available at http://www.nationofimmigrators.com/?p=354, and “Rethinking Immigration: It’s Always the Economy, Stupid!”, available at http://www.nationofimmigrators.com/?p=353.

Mark Ivener’s new article, “Lawyer, Know Thyself: Fundamental Tips for Building a Strong Brand and a Strong Practice,” has been published by the American Bar Association. The article is available at http://www.abil.com/articles/ABIL%20Articles%20-%20PRACTICE%20-%20Strong%20Brand%20%28Ivener%291.pdf.

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9. Government Agency Links

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

USCIS Service Center processing times online: 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

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Headlines:

1. USCIS Implements H-1B, L-1 Fee Increases – Effective immediately, the provisions require an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010.

2. CBP Clarifies TN Extensions of Stay While Immigrant Petition Is Pending/Approved – U.S. Customs and Border Protection has clarified that certain Trade NAFTA (TN) applicants may be admitted and extend their stay while an immigrant petition is pending or approved.

3. Smartsoft Agrees To Pay Nearly $1 Million in Back Wages, Interest – Smartsoft agreed to pay 135 nonimmigrant workers after the Wage and Hour Division determined that the company violated the H-1B program’s rules.

4. State Dept. Introduces ESTA Fee for Visa Waiver Travelers – The total fee will be $14, with $4 to recover the cost of administering the Electronic System for Travel Authorization and $10 as mandated in the Travel Promotion Act of 2009.

5. DHS Expands List of Dependents of Foreign Officials Eligible for Work Authorization – The final rule expands the list of dependents eligible for employment authorization to include any individual who falls within a category designated by the Department of State as qualifying.

6. ABIL Global: UK Government Introduces Limits on Skilled Immigration – The new Coalition Government’s main immigration policy will mark the first-ever numerical limits on employment-related migration, which historically has been market-driven.

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

8. Recent News from ABIL Members – Recent News from ABIL Members

9. Government Agency Links – Government Agency Links

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Details:

1. USCIS Implements H-1B, L-1 Fee Increases

On August 13, 2010, President Barack Obama signed into law provisions to increase certain H-1B and L-1 petition fees. Effective immediately, the provisions require an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010. The increases will remain in effect through September 30, 2014.

The additional fees apply to petitioners who employ 50 or more employees in the U.S. with more than 50 percent of their employees in the U.S. in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

•   initially to grant a worker nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or
• to obtain authorization for a worker having such status to change employers.

USCIS is revising the Petition for a Nonimmigrant Worker (Form I-129) and instructions to comply with the new law (Public Law 111-230). To facilitate implementation, USCIS recommends that all H-1B, L-1A, and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why the new fee does not apply. USCIS requests that petitioners state whether the fee is required in bold capital letters at the top of the cover letter. If USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the law. An RFE may be required even if such evidence is submitted, if questions remain.

The additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=27eac9514bb8a210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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2. CBP Clarifies TN Extensions of Stay While Immigrant Petition Is Pending/Approved

A 2008 letter just recently released from U.S. Customs and Border Protection has clarified that Trade NAFTA (TN) applicants may be admitted and extend their stay while an immigrant petition is pending or approved, provided that they have not filed for adjustment or an immigrant visa – i.e., had an immigrant visa interview – and do not intend to immigrate on this specific visit. Once a TN files an application for an immigrant visa or adjustment of status, the letter notes, the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant.

This is consistent with a practice that has not always been followed. A 1996 letter sent by a legacy Immigration and Naturalization Service official stated that the fact that an TN applicant is the beneficiary of an approved I-140 petition is not by itself a reason to deny an application for adjustment, extension, or readmission, if the individual’s intent is to remain in the U.S. temporarily. Some CBP officers, however have not always followed that advice.

The recently released CBP letter was sent on April 21, 2008, from Paul M. Morris, Executive Director, CBP Admissibility and Passenger Programs, to Charles D. Herrington, Senior Assistant General Counsel, Micron Technology, Inc. The letter states that “the mere filing or approval of an immigrant petition does not automatically constitute intent on the part of the beneficiary to abandon his or her foreign residence. This would hold for a TN principal who may be riding on a spouse’s immigrant petition.”

The 2008 CBP letter is available at http://www.abil.com/articles/ABIL%20Report%20-%20TN.pdf.

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3. Smartsoft Agrees To Pay Nearly $1 Million in Back Wages, Interest

Smartsoft International Inc., a computer consulting company based in Suwanee, Georgia, has agreed to pay nearly $1 million in back wages and interest to 135 nonimmigrant workers temporarily employed by the company under the H-1B visa program, the Department of Labor (DOL) announced on August 17, 2010. The agency’s Office of the Solicitor reached the agreement following a determination by the Wage and Hour Division that the company violated the H-1B program’s rules. Smartsoft also has U.S. offices in Sunnyvale, California, and North Brunswick, New Jersey.

A Wage and Hour Division investigator determined that some employees were not paid any wages at the beginning of their employment, were paid on a part-time basis despite being hired under a full-time employment agreement, and were paid less than the prevailing wage applicable to the geographic locations where they performed their work.

The company contested the Wage and Hour Division’s conclusions and requested a formal hearing with the DOL’s Office of Administrative Law Judges. As part of the agreement, the company will drop any further challenges.

The DOL’s announcement is available at http://www.dol.gov/opa/media/press/whd/whd20101111.htm.

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4. State Dept. Introduces ESTA Fee for Visa Waiver Travelers

The Department of State released a cable to the field in August 2010 that provides information on implementation of the Travel Promotion Act of 2009 (TPA), signed into law on March 4, 2010, and fee collection for the Electronic System for Travel Authorization (ESTA). Under the TPA, fees collected from international travelers from Visa Waiver Program (VWP) countries, matched by private sector contributions, will fund the Corporation for Travel Promotion. The fees will be collected through the ESTA system, which the Department of Homeland Security (DHS) administers.

On August 6, 2010, the DHS announced an interim final rule that requires travelers from VWP countries to pay operational and travel promotion fees when applying for ESTA beginning September 8, 2010. The total fee will be $14, with $4 to recover the cost of administering the ESTA system and $10 as mandated in the TPA.

The announcement, which provides additional details, is available at http://travel.state.gov/pdf/Introduction%20of%20the%20ESTA%20fee%20for%20Visa%20Waiver%20Travelers%20-%20August2010.pdf.

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5. DHS Expands List of Dependents of Foreign Officials Eligible for Work Authorization

The Department of Homeland Security (DHS) published a final rule on August 10, 2010, amending its regulations governing the employment authorization for dependents of foreign officials classified as A-1, A-2, G-1, G-3, and G-4 nonimmigrants. The rule, effective August 9, 2010, expands the list of dependents eligible for employment authorization to include any individual who falls within a category designated by the Department of State (DOS) as qualifying.

U.S. Citizenship and Immigration Services (USCIS) will only issue employment authorization documents to those dependents of foreign officials who are recognized by DOS as qualifying. Qualifying dependents must fall within a bilateral work agreement or de facto arrangement, listed on DOS’s Web site at http://www.state.gov/m/dghr/flo/c24338.htm.

To apply for employment authorization documents, eligible dependents first must obtain an endorsement from DOS on an Interagency Record of Request, Form I-566. The individual must then file the I-566 along with an Application for Employment Authorization, Form I-765, with USCIS.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e9867236f9c5a210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. ABIL Global: UK Government Introduces Limits on Skilled Immigration

The United Kingdom (UK) announced on June 28, 2010, that it will introduce limits on the numbers of non-European Union (EU) migrants coming to the UK under both the highly skilled and the sponsored routes of the Points Based System (PBS). The new Coalition Government’s main immigration policy will mark the first-ever numerical limits on employment-related migration, which historically has been market-driven. The limits are a response to the levels of net migration to the UK, which have increased significantly since 2004 with the enlargement of the EU.

On July 19, 2010, the Government also introduced an interim limit, in effect until April 2011, aimed at reducing the number of certificates of sponsorship that each employer may assign to migrant workers under Tier 2 (General) and reducing the number of visas issued under the Tier 1 highly skilled category. Many employers, who had been allocated these certificates when they registered as licensed sponsors under the scheme, have had their allocation reduced significantly (in some cases to zero) and must now make requests for additional allocations of certificates, which the UK Border Agency states will be approved only “in exceptional circumstances.”

The interim cap is already the subject of a legal challenge. With those extending their status in the UK given priority within the limits, employers who have paid to be licensed sponsors and have taken on significant compliance duties are now left with uncertainty about whether they can sponsor new hires from outside the EU.

Permanent limits will be introduced in April 2011. The UK government is undertaking a consultation process on how the limits should be imposed and, in particular, whether this should be on a first-come, first-served basis and whether intracompany transferees and family members should be included in the overall limit. For the points-based highly skilled route, a system of pooling, under which the highest-scoring applicants are picked from the pool each month, is also being considered.

There are significant concerns among major UK business groups and companies that the limits will damage the UK’s reputation as a place to do business and its competitiveness in the global economy.

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7. New Publications and Items of Interest

2009 Yearbook of Immigration Statistics. This compendium of tables published by the Department of Homeland Security’s Office of Immigration Statistics provides data on foreign nationals who, during fiscal year 2009, were granted lawful permanent residence, were admitted into the United States on a temporary basis, applied for asylum or refugee status, or were naturalized. Also included are data on enforcement actions. The Yearbook is available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2009/ois_yb_2009.pdf. A report on enforcement actions in 2009 is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_2009.pdf.
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8. Recent News from ABIL Members

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in the Chicago Sun-Times (August 22, 2010) regarding asylum cases denied if applicants unwillingly aided terrorist organizations, even if under threat of death: “Unfortunately, the federal government has a very broad definition of material support. Even giving a cup of water or bowl of rice under duress can be deemed to be material support.” Mr. Yale-Loehr noted that it is common for the government to appeal such cases when the victim wins at the immigration judge level. “They’ll tell you it’s on a case-by-case basis but…the government does appeal too often,” he said. “If someone is successful at the immigration judge level, it’s well-deserved.” Mr. Yale-Loehr was also quoted in a related editorial published on the same day in the Chicago Sun-Times.

Articles on a variety of business immigration law topics by Alliance of Business Immigration Lawyers (ABIL) members are available on ABIL’s Web site at http://www.abil.com/newsletters_articles.cfm.

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9. Government Agency Links

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

USCIS Service Center processing times online: 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

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Headlines:

1. ICE I-9 Final Rule Allows for Electronic Signatures, Scanning, Storage – Employers and recruiters or referrers for a fee who are required to complete and retain the Employment Eligibility Verification Form may now sign the form electronically and retain it in an electronic format.

2. USCIS Clarifies ‘O’ Validity Period When Gap Exists in Itinerary, Promises 2-Week Turnaround for O and P Visas – The memo notes that there is no statutory or regulatory authority for the proposition that a gap of a certain number of days in an itinerary automatically indicates a new event; USCIS dramatically lowered the expected turnaround time for O and P visas.

3. Preliminary Injunction Blocks Key Provisions of Arizona Immigration Statute – A key portion of the new statute may conflict with a Supreme Court ruling that states cannot create their own immigration systems, a federal judge states; the New York City Bar calls the statute unconstitutional.

4. USCIS Extends Initial Registration Period for Haitian TPS – The new notice extends the TPS registration period through January 18, 2011.

5. American Immigration Lawyers Association Sues DHS, USCIS Over H-1B Transparency – The FOIA litigation centers on the government’s H-1B visa review and processing procedures.

6. USCIS Proposes New Standardized Fee Waiver Form – USCIS has proposed for the first time a standardized fee waiver form, and seeks public comments.

7. ABIL Global: Temporary Business Visas in Peru – This type of visa and migratory status allows a foreign citizen to carry out activities in Peru common to a businessperson, not a worker.

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

9. Recent News From ABIL Members – Recent News From ABIL Members

10. Government Agency Links – Government Agency Links

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Details:

1. ICE I-9 Final Rule Allows for Electronic Signatures, Scanning, Storage

U.S. Immigration and Customs Enforcement (ICE) has issued a final rule, effective August 23, 2010, providing that employers and recruiters or referrers for a fee who are required to complete and retain the Employment Eligibility Verification Form (I-9) may sign the form electronically and retain it in an electronic format. The final rule makes minor changes to an interim final rule promulgated in 2006.

The final rule’s supplementary information notes that the completed I-9 form is not filed with the Department of Homeland Security (DHS) but is retained by the employer, who must make it available for inspection upon a request by ICE investigators or other authorized federal officials. Employers must keep the I-9 in their own files for three years after the date of hire of the employee or one year after the date that employment is terminated, whichever is later. Recruiters or referrers for a fee must keep each I-9 for three years after the date of hire. Failure to properly complete and retain each I-9 may subject the employer or recruiter or referrer for a fee to civil money penalties.

Among other things, the final rule clarifies that:

• Employers must complete the I-9 within three business (not calendar) days;
• Employers may use paper, electronic systems, or a combination of paper and electronic systems;
• Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;
• Employers need not retain audit trails recording each time an I-9 is electronically viewed, but only when the I-9 is created, completed, updated, modified, altered, or corrected; and
• Employers may provide or transmit a confirmation of an I-9 transaction, but are not required to do so unless the employee requests a copy.

The final rule, which includes “performance standards” for electronic filing processes and systems, is available at http://edocket.access.gpo.gov/2010/pdf/2010-17806.pdf.

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2. USCIS Clarifies ‘O’ Validity Period When Gap Exists in Itinerary, Promises 2-Week Turnaround for O and P Visas

There have been several recent developments with respect to O and P visas:

On July 20, 2010, U.S. Citizenship and Immigration Services (USCIS) issued clarifying guidance on the “O” nonimmigrant visa petition with regard to determining the appropriate validity period of an approvable petition when a gap exists between two or more events reflected in the itinerary.

The memo explains that the validity dates for the O-1 visa classification are defined by the specific period of time required to perform or participate in a specific event. When reviewing an O-1 petition, the length of time between the scheduled events, also known as a gap, has sometimes been viewed as a gauge to determine whether an itinerary represented one continuous “event” or separate events requiring separate petitions.

In certain cases where there has been a significant gap between events, adjudicators have sometimes concluded that a single petition was filed for separate events rather than a continuous event. In such cases, the petition may have been approved only for a validity period equal to the length of time needed to accomplish what appeared to be the initial specific event rather than the continuous event as represented by the petition.

The memo notes that there is no statutory or regulatory authority for the proposition that a gap of a certain number of days in an itinerary automatically indicates a new event. “The regulations speak in terms of tours and multiple appearances as meeting the ‘event’ definition.” The statutory and regulatory background provides flexibility on the length of validity period that may be granted, the memo states:

“The statute and regulations allow for an approval of an O-1 petition for a period necessary to accomplish the event or activity, not to exceed 3 years. Adjudicators should evaluate the totality of the evidence submitted to determine if the activities described in the itinerary are related in such a way that they would be considered an ‘event’ for purposes of the validity period. When the validity period requested is established though the submission of appropriate evidence, Service Centers should approve a petition for the length of the validity period requested where the law and regulations permit.”

The memo is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/July/guidance-O-petition-gap_memo-07-20-10.pdf.

In other news, USCIS promised during a public meeting with stakeholders on July 20, 2010, that processing times for regularly filed O and P visas for performers and athletes will not exceed 14 days. In some previous cases, adjudications reportedly have taken up to four months, and delays have led to last-minute scrambles and missed performances. Although arts groups say more needs to be done, many were hopeful about this recent development. The Performing Arts Alliance said it was “extremely pleased with this week’s breakthrough.”

For more, see http://www.nytimes.com/2010/07/23/arts/music/23visa.html and http://www.tcg.org/advocacy/alert.cfm.

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3. Preliminary Injunction Blocks Key Provisions of Arizona Immigration Statute

Following the Department of Justice’s challenge to Arizona’s recently passed immigration law, S.B. 1070, U.S. District Judge Susan Bolton of Phoenix, Arizona, issued a preliminary injunction against key provisions of the new statute. While not striking down the entire law, she blocked the provisions (1) requiring that an officer attempt to determine the immigration status of a person stopped, detained, or arrested if there is a “reasonable suspicion” that the person is unlawfully present, and requiring verification of the immigration status of any person arrested before release; (2) creating a crime for the failure to apply for or carry alien registration papers; (3) creating a crime for an unauthorized alien to solicit, apply for, or perform work; and (4) authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes him or her removable from the U.S.

Meanwhile, the New York City Bar Association issued a report concluding that the new law is unconstitutional under the Supremacy Clause and the First, Fourth, and Fourteenth Amendments.

The NYC Bar report notes that 10 states are currently contemplating similar legislation, including Utah, Georgia, Colorado, Maryland, Ohio, North Carolina, Texas, Missouri, Oklahoma, and Nebraska. The NYC Bar said that the substantive content of these state statutes, as manifested by S.B. 1070, “promotes racial profiling while infringing upon the exclusive role of the federal government to regulate immigration.” The NYC Bar noted that the Arizona statute “adopts a adopts a parallel immigration enforcement program to the one maintained by the federal government through the pretext of conflating civil and criminal provisions of the Immigration and Nationality Act.” At the same time, the NYC Bar said, “the statute fails on due process and Fourth Amendment grounds, in that it offers insufficient guidance to officials administering it as to when ‘reasonable suspicions’ of unlawful presence exist, and will target the foreign-born.”

The report urged states to resist emulating Arizona’s statute, and noted that “[f]ailure to enact comprehensive immigration reform is providing the fuel for states to overreach in this area of exclusive federal regulation.”

The preliminary injunction is available at http://images.bimedia.net/documents/SB1070-order.pdf. A report on Judge Bolton’s opinion is available at http://www.latimes.com/news/nationworld/nation/la-na-arizona-immigration-20100723,0,3498774.story. The New York City Bar report is available at http://www.nycbar.org/pdf/report/uploads/20071951-ReportonArizonaImmigrationLawSB1070.pdf. The Justice Department’s announcement is available at http://www.justice.gov/opa/pr/2010/July/10-opa-776.html. Links to the complaint filed and other case documents are provided at the bottom of that page.

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4. USCIS Extends Initial Registration Period for Haitian TPS

On January 21, 2010, the Department of Homeland Security (DHS) designated Haiti under the temporary protected status (TPS) program for a period of 18 months. DHS initially established a 180-day registration period from January 21, 2010, through July 20, 2010. A new notice extends the TPS registration period through January 18, 2011.

The notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-17116.pdf.

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5. American Immigration Lawyers Association Sues DHS, USCIS Over H-1B Transparency

The American Immigration Council’s Legal Action Center (LAC) filed a lawsuit on July 20, 2010, against the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) on behalf of the American Immigration Lawyers Association (AILA), seeking the public release of records on agency policies and procedures for the H-1B visa program.

AILA had pursued disclosure of the documents through two Freedom of Information Act (FOIA) requests, both of which were denied. In its complaint filed in the U.S. District Court for the District of Columbia, AILA seeks the court’s intervention to compel the government to release the requested records.

The FOIA litigation centers on the government’s H-1B visa review and processing procedures. The H-1B program, administered by USCIS, allows U.S. businesses to temporarily employ foreign workers, such as scientists, engineers, and computer programmers, in occupations that require theoretical or technical expertise in specialized fields. Since 2008, the LAC noted, USCIS has implemented new, more stringent procedures for review and processing and has dramatically increased the frequency of unannounced H-1B worksite inspections, which are expected to reach 25,000 in 2010. Yet “USCIS has kept secret the rules and guidelines related to the review process,” the LAC said. “The dearth of publicly available information on the government’s heightened scrutiny of H-1B applications makes it particularly difficult for businesses to anticipate and meet agency expectations during the application process.”

“It is in the public and the agency’s interest to release the documents sought by AILA,” said Mary Kenney, an attorney at the American Immigration Council’s Legal Action Center. “The documents will help employers and foreign workers who seek immigration benefits comply with the law. Further, the agency violated FOIA when it issued wholesale denials of AILA’s FOIA requests.” AILA is also represented in the litigation by Steptoe & Johnson LLP.

The announcement is available at http://www.aila.org/content/default.aspx?docid=32657.

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6. USCIS Proposes New Standardized Fee Waiver Form

U.S. Citizenship and Immigration Services (USCIS) has proposed for the first time a standardized fee waiver form. USCIS seeks public comments on the proposed new Form I-912, Request for Individual Fee Waiver.

Details and instructions for responding to the request for comments are available at http://edocket.access.gpo.gov/2010/pdf/2010-17114.pdf. The proposed form is available at http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480b1a9c1. More information is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=0fb5ac6b49cd9210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=2e15ac6b49cd9210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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7. ABIL Global: Temporary Business Visas in Peru

To visit Peru to carry out business activities, some aspects of the consular temporary business visa must be taken into account. The temporary business visa enables foreign citizens to perform activities typical of a businessperson in Peru.

The Peruvian “Aliens Law” defines “Business” migratory status as:

Business: Those who come to the country with no intention to reside and in order to perform business, legal or similar arrangements. They are permitted to sign contracts or settlements. They cannot perform remunerated or profit-making activities or earn any income from a Peruvian source, except for fees as directors of companies domiciled in Peru or fees as lecturers or international consultants by virtue of a service agreement. Such service agreement shall not exceed thirty (30) consecutive or accumulated calendar days, within a period of twelve (12) months. [Paragraph (k), section 11, Legislative Decree No. 703 modified by Legislative Decree No. 1043, Aliens Law]

The maximum period of authorized stay for a consular temporary business visa is 183 calendar days, non-extendable internally in Peru.

The consular temporary business visa must be obtained in a Peruvian consulate abroad, complying with the requirements established by the pertinent consulate; i.e., the consulate where the foreign citizen resides or, in absence of a consulate in the city of residence, one nearby.

This type of visa and migratory status allows a foreign citizen to carry out activities in Peru common to a businessperson, not a worker. A temporary business visa does not authorize rendering subordinate services as an employee (worker) of a local company or as an appointed worker of a company abroad.

Permitted activities with a business visa include:

• Performing business arrangements
• Performing legal or similar arrangements
• Attending business meetings or discussions with Peruvian affiliates or related companies
• Attending sales calls to potential Peruvian clients, provided the alien represents a commercial entity outside Peru
• Observing operations of a Peruvian affiliate or client
• Attending “fact-finding” meetings with a Peruvian affiliate or clients
• Attending seminars
• Signing documents, contracts, or settlements
• Acting as an international lecturer or consultant
• Acting as a director of a company domiciled in Peru
• Collecting data or information regarding investments and similar activities
• Supervising business or investments

A business visa does not allow the holder to perform labor activities in Peru or to earn income from a Peruvian source. Training or acting in an advisory capacity does not qualify as a business, legal, or similar arrangement.

In sum, if any foreign company is considering sending some of its employees to carry out business activities in Peru as businesspersons, they must enter Peru on a consular temporary business visa according to Peru’s Aliens Law.

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8. New Publications and Items of Interest

Federal Register changes. The Office of the Federal Register (OFR) and the Government Printing Office (GPO) are moving the Federal Register home page and the Public Inspection Desk to http://www.OFR.gov. Please reset your bookmarks before July 26, 2010. The OFR said this change is necessary to make way for a new edition of the daily Federal Register, an unofficial “Web 2.0” prototype, which will be hosted on http://FederalRegister.gov.

The Federal Register home page on http://www.OFR.gov will continue to feature the electronic Public Inspection Desk (http://www.ofr.gov/inspection.aspx), the Privacy Act Issuances for 2007 and 2009 (http://www.ofr.gov/Privacy/AGENCIES.aspx), and the OFR Catalog, which links to all Federal Register publications and services.

As of July 26, 2010, the FederalRegister.gov Web site displays an XML prototype of the daily Federal Register. It is not an official legal edition of the Federal Register, the OFR said, and does not replace the official (print or electronic) version on GPO’s Federal Digital System (http://www.FDsys.gov). OFR and GPO are posting the unofficial XML prototype of the Federal Register to gather public feedback, with the aim of granting it official status in the future. It will remain an unofficial informational resource until the Administrative Committee of the Federal Register issues a regulation granting it official legal status.

A related news report is available at http://www.federalnewsradio.com/?nid=35&sid=2004175.

SEVIS quarterly update. The Student and Exchange Visitor Information System (SEVIS) has released a general summary quarterly review. The report notes that since the program’s inception, the total volume of data in SEVIS continues to grow. On June 30, 2010, SEVIS contained records for 1,084,122 active nonimmigrant students, exchange visitors, and their dependents. The total number of records for all F-1, M-1, and J-1 visa holders has increased to approximately 7.6million.

The report is available at http://www.ice.gov/doclib/sevis/pdf/quarterly_report_ending_june2010.pdf.

Visa number allotments and the cut-off date process. The Department of State’s Visa Office has released “The Operation of the Immigrant Numerical Control System,” which explains how immigrant visas subject to numerical limitations are allotted and the determination of cut-off dates for the Visa Bulletin. The document, which also clarifies some frequently misunderstood points, is available at http://travel.state.gov/visa/bulletin/bulletin_1360.html.

Immigration statistics Web redesign. The Department of Homeland Security’s Office of Immigration Statistics (OIS) has recently restructured its Web site. After reviewing user feedback, OIS implemented a new design that organizes reports and data by subject area, as opposed to product type, and that is intended to allow users more efficient access to immigration reports and data. The new site is available at http://www.dhs.gov/files/statistics/immigration.shtm.

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9. Recent News From ABIL Members

Steve Garfinkel (bio: http://www.abil.com/lawyers/lawyers-garfinkel.cfm) spoke at the Charlotte Area Society for Human Resource Management (Charlotte SHRM) on July 12, 2010. He presented an Immigration Update session at the SHRM Midyear Legal Update.

Mr. Garfinkel also served as a panelist on July 23, 2010, at the fifth annual Schloss Summer Lecture, “The Great Immigration Debate: Strangers Among Us.”

Steve Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in the Wall Street Journal in the July 29, 2010, edition in an article about the injunction blocking key provisions of Arizona’s new immigration statute, Mr. Yale-Loehr cautioned against jumping to conclusions. “[The judge] only ruled for the government as a preliminary matter,” he said. “Her final ruling may differ. And higher courts could overturn today’s decision.” The article appears at http://online.wsj.com/article/SB10001424052748703940904575395314079925720.html.

Mr. Yale-Loehr also was quoted in a Wall Street Journal article on July 15, 2010. The article concerns issues brought on by the Department of Homeland Security’s recent crackdown on the hiring of undocumented immigrants. Mr. Yale-Loehr said, “The message is: Employers beware. You need to worry just as much about asking for too many immigration documents as you do about not asking for enough.” The article can be found at: http://online.wsj.com/article/SB10001424052748703283004575363303262763196.html?KEYWORDS=yale-loehr.

Mr. Yale-Loehr also contributed essays to a New York Times forum on the Arizona immigration law. See http://www.nytimes.com/roomfordebate/2010/07/28/whats-next-on-arizonas-immigration-law?hp.

Steve Trow (bio: http://www.abil.com/lawyers/lawyers-trow.cfm) recently commented on Arizona’s new law also: “Congress dropped the ball on immigration reform, but that doesn’t give Arizona the right to run onto the field and pick it up. DOJ needs to get Arizona off the field, then Congress needs to fix our broken immigration system.” See http://www.bisnow.com/washington_dc_legal_news_story.php?p=9529.

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10. Government Agency Links

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

USCIS Service Center processing times online: 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

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Headlines:

1. Department of State Publishes Consular Fee Interim Rule, Reopens Comment Period – The Department received 1,797 comments in response to the proposed rule and has reopened the comment period for an additional 60 days, until August 27, 2010.

2. USCIS Issues Guidance to Employers on Documentation of Work Authorization for TPS Beneficiaries – The guidance notes, among other things, that if an employee presents a TPS-related EAD that is expired for completion of the I-9 verification process, the employer must accept it if it remains unexpired based on an auto-extension of the EAD by DHS.

3. Secretary of Labor Announces $78.4 Million for Farmworker Jobs Program – The program provides training and employment services to migrant and seasonal farmworkers.

4. U.S. Embassies, Consulates in China Temporarily Open on Saturdays – Growth in 2010 has been dramatic, with China’s 2010 visa load up 28 percent over the same period last year.

5. iCERT Glitches: DOL Responds – Until the problems are resolved, the Department of Labor advises anyone needing a PDF of an LCA that they cannot access to e-mail the LCA Help Desk.

6. ABIL Global: Update from Australia – Australia’s new Prime Minister, Julia Gillard, has signaled a major shift in immigration policy by declaring that she does not believe in a “big Australia.”

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

8. Recent News From ABIL Members – Recent News From ABIL Members

9. Government Agency Links – Government Agency Links

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Details:

1. Department of State Publishes Consular Fee Interim Rule, Reopens Comment Period

In response to a previously published proposed rule and related supplementary notice, the Department of State received 1,797 comments and has reopened the comment period for an additional 60 days, until August 27, 2010. The interim final rule takes effect on July 13, 2010. Nonimmigrant visa fees, including fees for Machine-Readable Visas (MRVs) and Border Crossing Cards (BCCs), have been modified under a separate rule published in May 2010, and those modified fees are also reflected in the Schedule of Fees in the interim rule.

Among other fee changes:

• The Department is increasing the application fee for a passport book for an adult (age 16 and older) from $55 to $70, and increasing the passport book security surcharge from $20 to $40. The application fee for a passport book for a minor (under age 16) will remain at $40.
• Instead of a single fee for processing an immigrant visa, the Department has created fees depending on the category of visa. The application fee for an employment-based visa processed on the basis of an I-140 petition will be $720. The application fee for a family-based visa (immediate relative and preference) processed on the basis of an I-130, I-600, or I-800 petition will be $330. Other immigrant visa applications (including for diversity visa applicants) will have a fee of $305.
• The Department is increasing the immigrant visa security surcharge, which all applicants except those statutorily exempted must pay, from $45 to $74.

The interim final rule, which includes a long discussion of the many comments received, is available at http://edocket.access.gpo.gov/2010/pdf/2010-15622.pdf.

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2. USCIS Issues Guidance to Employers on Documentation of Work Authorization for TPS Beneficiaries

U.S. Citizenship and Immigration Services (USCIS) recently issued guidance on the documentation employers may accept and that temporary protected status (TPS) beneficiaries may present as evidence of employment eligibility.

The guidance notes that the expiration date on the card is usually the end of the TPS period for which the bearer last registered. When the Department of Homeland Security (DHS) extends a specific TPS country designation, it sometimes issues a Federal Register notice containing a temporary blanket automatic extension of expiring employment authorization documents (EADs) for TPS beneficiaries from that country to allow time for USCIS to issue new EADs with updated validity dates. The USCIS Web site and the Federal Register notice will describe this EAD automatic extension and will note the date when the auto-extension ends. The extension is typically for six months, but the time period may vary.

If an employee presents a TPS-related EAD that is expired for completion of the Form I-9 employment authorization verification process, the employer must accept it if it remains unexpired based on an auto-extension of the EAD by DHS as announced in a notice published in the Federal Register. The card must reasonably appear to be genuine and to relate to the employee presenting it to be acceptable.

The guidance includes an example of a valid TPS-related EAD and additional detailed instructions. It is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f876090684988210VgnVCM100000082ca60aRCRD&vgnextchannel=8a2f6d26d17df110VgnVCM1000004718190aRCRD.

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3. Secretary of Labor Announces $78.4 Million for Farmworker Jobs Program

On June 24, 2010, U.S. Secretary of Labor Hilda L. Solis announced $78,410,000 in grant funds through the National Farmworker Jobs Program. The program provides training and employment services to migrant and seasonal farmworkers. The Department of Labor said the program “is designed to counter the impact of chronic unemployment and underemployment experienced by migrant and seasonal farmworkers who depend primarily on agricultural labor jobs.”

“Farmworkers do so much for families and for the nation’s economy as a whole. These hard-working members of our community deserve our support,” said Secretary Solis. “Today’s grants are an opportunity to help these workers as they upgrade their skills to improve their chances of advancement in their current employment or seek opportunities in other industries.”

The National Farmworker Jobs Program provides funding to community-based organizations and public agencies that assist farmworkers and their families in attaining greater economic stability. In addition to skills training, the program provides support services that help farmworkers participate in training programs or retain their agriculture employment. Services provided to farmworkers under the program include skills assessments, job search assistance, basic education remediation, case management, and on-the-job training. In addition, the program provides services such as child care, health care, and transportation that help workers keep their current jobs or successfully complete training programs.

Of the 50 states, 48 each have one grantee. California has five grantees. There are no grantees in Alaska. National Farmworker Jobs Program grants are awarded every two years. The new grants are continuations of 2009 funding.

The announcement, which includes a full list of grantees by state and the amounts granted, is available at http://www.dol.gov/opa/media/press/eta/eta20100878.htm.

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4. U.S. Embassies, Consulates in China Temporarily Open on Saturdays

On June 18, 2010, the Department of State announced that the U.S. Embassy in Beijing, along with four U.S. consulates general across China, is opening on Saturdays “over the next few weeks” to accommodate thousands of Chinese travelers seeking visas to visit the U.S.

Trade, commerce, people-to-people exchanges, and tourism between China and the U.S. have grown dramatically over the past few years, the Department noted. In 2009, U.S. consulates in China issued more than 487,000 visas to Chinese travelers. Sixty-six percent were for business and tourism. Growth in 2010 has been even more dramatic, with China’s 2010 visa load up 28 percent over the same period last year.

The announcement is available at http://www.state.gov/r/pa/prs/ps/2010/06/143364.htm.

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5. iCERT Glitches: DOL Responds

The American Immigration Lawyers Association recently queried the Department of Labor about difficulties in using the iCERT system, which is causing certain labor condition application cases in “initiated” status not to display online. A common reported problem is receiving an inappropriate warning when entering a prevailing wage source date. The DOL said it is working to correct the problems. Until they are resolved, the DOL advises anyone needing a PDF of an LCA that they cannot access to e-mail the LCA Help Desk at lca.chicago@dol.gov.
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6. ABIL Global: Update from Australia

Australia’s new Prime Minister, Julia Gillard, has signaled a major shift in immigration policy by declaring that she does not believe in a “big Australia.”

Former Prime Minister Kevin Rudd was in favor of population growth, with his government predicting it to hit around 36 million by 2050, largely through immigration. Australia’s population grew by two percent last year, mainly through migration – faster than any other developed country.

Since her appointment, Ms. Gillard has said, “Australia should not hurtle down the track towards a big population. I don’t support the idea of a big Australia with arbitrary targets of, say, a 40 million-strong Australia or a 36 million-strong Australia. We need to stop, take a breath and develop policies for a sustainable Australia. I support a population that our environment, our water, our soil, our roads and freeways, our buses, our trains and our services can sustain.”

But Ms. Gillard says that does not mean putting a stop to immigration altogether. Herself a migrant, Ms. Gillard said she would hold together an immigration policy that was pro-business and highly skilled, saying, “I don’t want business to be held back because they couldn’t find the right workers. That’s why skilled migration is so important.”

A recent poll showed 72 percent of people supported a rise in Australia’s population, but 69 percent wanted it to remain below 30 million people.

Just a month before Ms. Gillard’s appointment as Prime Minister, the Australian government had announced a new skilled migration program to address Australia’s medium and long-term skill needs. At the same time, the government confirmed that employers would be able to continue to solve their skill shortages through employer-sponsored programs that would be given priority processing with state and territory governments and given a role in sponsoring skilled migrants to solve local skill shortages.

A new Skilled Occupations List (SOL) comes into effect on July 1, 2010, and provides for just 181 occupations, which is a significant decrease from the old SOL containing 408 occupations. The new SOL represents a more demand-driven approach towards the skilled migration program, emphasizing high-value skills that will assist in addressing Australia’s labor market shortages. Under the old SOL, it was possible for a Ph.D. in environmental science from Harvard to miss out while a cook or hairdresser with low English skills who had completed a short technical course in Australia was able to proceed directly to permanent residence.

Occupations on the new SOL include doctors, nurses, dentists, accountants, engineers, IT professionals, and teachers (except primary school teachers), along with selected highly skilled trades, including electricians, carpenters, and motor mechanics.

By contrast, the demand-driven employer-sponsored temporary residence program allows businesses to sponsor over 620 managerial, professional, associate professional, and trade occupations. A key requirement for approval as a sponsor is that the business can demonstrate that it has met the training benchmark of spending at least one percent of gross payroll on training or upskilling its Australian workforce. Employers in regional Australia are able to sponsor not only these occupations but dozens of other occupations by entering into a Labour Agreement with the Australian government. For continued access to the program, a regional business must provide six monthly reports on efforts to recruit and train locals.

Employers can also nominate foreign workers for permanent residence in 430 occupations. A nominee must meet any of the following three criteria: (a) be paid in excess of A$165,000 p.a.; (b) be working in Australia for at least two years on one of a select range of temporary visas, including at least one with the nominating employer; or (c) have their skills or qualifications assessed by an approved assessing authority and have at least three years of relevant industry experience. Fully documented applications can result in permanent residence approvals in just two months.

By comparison with many other developed economies, Australia already shows signs of recovery from the global financial crisis. The government is keen to ensure that skills are readily available to facilitate a full recovery as well as deal with the looming issues that will flow from Australia’s aging population. To this end, newly elected Prime Minister Gillard has suggested that the government could pursue different migration policies for different parts of the country – the clearest indication yet that the skill needs of employers will be the driver of any new migration program.

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7. New Publications and Items of Interest

Characteristics of H-1B specialty occupation workers. U.S. Citizenship and Immigration Services has released “Characteristics of H-1B Specialty Occupation Workers” for fiscal year (FY) 2009. Highlights of the report include:

• The number of H-1B petitions filed decreased 15 percent from 288,764 in FY 2008 to 246,647 in FY 2009.
• The number of H-1B petitions approved decreased 22 percent from 276,252 in FY 2008 to 214,271 in FY 2009.
• Approximately 48 percent of all H-1B petitions approved in FY 2009 were for workers born in India.
• Two-thirds of H-1B petitions approved in FY 2009 were for workers between the ages of 25 and 34.
• Forty-one percent of H-1B petitions approved in FY 2009 were for workers with a bachelor’s degree, 40 percent had a master’s degree, 13 percent had a doctorate, and 6 percent were for workers with a professional degree.
• About 41 percent of H-1B petitions approved in FY 2009 were for workers in computer-related occupations.
• The median salary of beneficiaries of approved petitions increased to $64,000 in FY 2009, which was $4,000 more than in FY 2008.

The report is available at http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/H-1B/h1b-fy-09-characteristics.pdf.

Guide to InfoPass. InfoPass is a free online appointment-scheduling service of U.S. Citizenship and Immigration Services (USCIS). The agency has released a guide with tips on using the service. The guide is available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f183bd85ef149210VgnVCM100000082ca60aRCRD&vgnextchannel=f183bd85ef149210VgnVCM100000082ca60aRCRD.

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8. Recent News From ABIL Members

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm) will be awarded the American Immigration Lawyers Association’s (AILA) Edith Lowenstein Award for advancing the practice of immigration law on July 3, 2010 at AILA’s annual conference. Additional information on the 2010 awards is available at http://www.aila.org/content/default.aspx?docid=32427.

Mr. Paparelli recently argued on his blog that investor visa categories must be expanded. Mr. Paparelli noted, among other things, that “statutory and bureaucratic impediments to investment have produced all too predictable results.” He suggested that Congress consider more enticing, user-friendly investor visa categories. The blog is available at http://www.nationofimmigrators.com/?p=336.

ABIL and ABIL Global speakers/presenters at the upcoming 2010 AILA annual conference include:

• Kehrela Hodkinson, who will speak on a panel on “Immigrant Waivers Around the Globe”
• Mark Ivener, who will speak on “Marketing for Your Firm”
• Charles Kuck, who will speak on “Media Policy or Media Frenzy? The Keys to Media Advocacy
• Sharon Mehlman, who will moderate the USCIS open forum
• Cyrus Mehta, who will be discussion leader of the “Pro Bono 101” panel and moderate a meeting with the Hon. Robert A. Katzmann of the Second Circuit, who will receive the Michael Maggio Memorial Pro Bono Award, and AILA pro bono advocates
• Mr. Paparelli, who will speak on “Setting Up Immigration Policies and Processes for Corporate Clients”
• William Z. Reich, who will speak on border processing of TN and L-1 applications

Steve Clark (bio: http://www.abil.com/lawyers/lawyers-clark.cfm) chaired a CLE for the Boston Bar Association on Corporate Reorganization and Immigration on May 18, 2010. The panel included a presentation on I-9 and E-verify issues by ABIL President Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm). Other members of ABIL firms (e.g., Chin and Curtis) discussed the role of counsel and written immigration policies in the reorganization process.

Mr. Clark will deliver a presentation on “Post-Filing Issues in PERM Labor Certifications” at AILA’s National Conference on July 1, 2010, in National Harbor, Maryland.

Steve Trow (bio: http://www.abil.com/lawyers/lawyers-trow.cfm) presented on “U.S. Immigration and Citizenship Planning for High Net Worth Clients” at the Canadian national conference of the Society of Trust and Estate Practitioners in Toronto on June 7. His presentation included U.S. visa planning for investors and entrepreneurs, immigration strategies in relation to the U.S. exit tax, identifying clients who are not aware that they are U.S. citizens, and terminating U.S. citizenship by expatriation.

Mr. Trow also presented on “Immigration and Citizenship Planning for U.S. Citizens and Long Term Residents Who Expatriate” at a panel discussion hosted by the International Tax Committee of the District of Columbia Bar Association on June 22. The panel included four attorneys from the Internal Revenue Service who provided guidance on taxation of expatriates under Section 877A of the Internal Revenue Code.

Steve Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) will deliver a presentation on appeals to the USCIS’ Administrative Appeals Office at AILA’s National Conference on July 2, 2010, in National Harbor, Maryland.

Mr. Yale-Loehr co-authored an article with Mr. Paparelli entitled “Investing in America Through the E-2 and EB-5 Visa Categories” in the June 22, 2010, issue of the New York Law Journal.

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9. Government Agency Links

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

USCIS Service Center processing times online: 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

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