Headlines:

1. USCIS Revises Employment Authorization Document – The EAD now includes a machine-readable zone on the back of the card.

2. State Dept. Raises Consular Fees for Nonimmigrant Visas and BCCs – The interim final rule, effective June 4, 2010, also reopens the comment period on the raised fees for an additional 60 days.

3. DHS Eliminates Paper Arrival/Departure Form for VWP Participants – Automated processing for U.S. airports will be activated on a rolling basis over the next several months.

4. State Dept. Updates Student and Exchange Visitor Visa Guidance – Visa appointments for students and exchange visitors should be provided on a priority basis, and admission to a lesser?known academic institution, a community college, or an English language program is not in itself a reason for refusal.

5. Not-So-Good Vibrations? USCIS Implements Business Verification Program – VIBE (Verification Initiative for Business Enterprises) is intended to provide USCIS with an alternative means of verifying the financial viability of companies petitioning to employ foreign workers.

6. ABIL Global: Update From Germany/Europe – The EU Commission wants to introduce a simplified, accelerated, and EU-standard admission process for persons who have special professional qualifications, an employment contract with a company based in the EU, and earnings at least triple the national minimum wage.

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 Revises Employment Authorization Document

U.S. Citizenship and Immigration Services (USCIS) announced on May 25, 2010, that it has revised the Employment Authorization Document (EAD) (Form I-766) to incorporate the addition of a machine-readable zone on the back of the card.

USCIS began issuing the revised EADs on May 11, 2010. USCIS also removed the two-dimensional bar code on the back of the card and moved the informational box of text to just beneath the magnetic stripe on the card. The revised card retains all of its existing security features.

This follows USCIS’s announcement in early May that it is replacing Permanent Resident Cards (green cards) with a redesigned card that incorporates new security features. The agency is replacing green cards already in circulation as individuals apply for renewal or replacement.

USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=12f0e37359fc8210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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2. State Dept. Raises Consular Fees for Nonimmigrant Visas and BCCs

The Department of State has published an interim final rule, effective June 4, 2010, that raises from $131 to $140 the fee charged for processing an application for most non-petition-based nonimmigrant visas (Machine-Readable Visas or MRVs) and adult Border Crossing Cards (BCCs). The rule also provides new tiers of the application fee for certain categories of petition-based nonimmigrant visas and treaty trader and investor visas (all of which are also MRVs). Finally, the rule increases the $13 BCC fee charged to Mexican citizen minors who apply in Mexico, and whose parent or guardian already has a BCC or is applying for one, by raising that fee to $14 by virtue of a congressionally mandated surcharge that went into effect in 2009.

The rule reopens the comment period on these fees for an additional 60 days. Written comments must be received by July 19, 2010. The Department will consider any further comments, and whether to make changes to the rule in response to them, before publishing a final rule.

The interim final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-12125.pdf.

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3. DHS Eliminates Paper Arrival/Departure Form for VWP Participants

On May 20, 2010, the Department of Homeland Security (DHS) announced the elimination of the paper arrival/departure form (Form I-94W) for authorized travelers from Visa Waiver Program (VWP) countries. Following a seven-month pilot program on Air New Zealand flights from Auckland to Los Angeles International Airport, the use of paper I-94W forms will be eliminated for VWP travelers with an approved Electronic System for Travel Authorization (ESTA) arriving in the U.S. at all airports by the end of this summer. U.S. Customs and Border Protection (CBP) will activate automated processing for U.S. airports on a rolling basis over the next several months.

Applying for an ESTA became mandatory on January 12, 2009, for all nationals of VWP countries before boarding a carrier to travel by air or sea to the U.S. This requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa.

CBP recommends that VWP travelers submit ESTA applications as soon as they begin making travel plans. ESTA applications may be submitted at any time before travel. ESTAs are valid for two years or until the applicant’s passport expires. CBP has received more than 19 million ESTA applications from citizens of VWP countries.

The DHS announcement is available at http://www.dhs.gov/ynews/releases/pr_1274366942074.shtm.

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4. State Dept. Updates Student and Exchange Visitor Visa Guidance

The Department of State has released a cable updating guidance to the field for student and exchange visitor visa applications. The cable reminds posts that visa appointments for students and exchange visitors should be provided on a priority basis. Admission to a lesser?known academic institution, a community college, or an English language program is not in itself a reason for refusal, the cable notes, but all applicants should be able to explain their school choice and educational plan. “Which school a student chose is not nearly as important as why he/she chose it. ”

The cable urges posts to report suspect schools. The cable also notes that Summer Work and Travel Program participants should return from their programs in time for the beginning of fall classes, even though the Department of Homeland Security allows them a 30?day grace period before they have to leave the U.S. The cable also provides clarification on flight training, study incidental to visits for pleasure, and the Student and Exchange Visitor Information System (SEVIS).

The cable also notes that the Bureau of Consular Affairs continues to receive complaints that some consular officers are unreceptive to applications from prospective community college students. This is at odds with Consular Affairs policy, the cable notes.

The cable is available at http://travel.state.gov/pdf/ExchangeVisitorVisaUpdate-April2010.pdf.

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5. Not-So-Good Vibrations? USCIS Implements Business Verification Program

U.S. Citizenship and Immigration Services’ (USCIS) Office of Public Engagement held an information-sharing session on May 27, 2010, in Washington, DC, on a Web-based tool provided under a USCIS contract with Dun & Bradstreet, Inc., that the agency said “will help bring uniformity and consistency to the processing of employment-based immigrant and nonimmigrant petitions.” During the session, Service Center Operations staff provided a presentation of the “VIBE” program, which is being implemented this year at Service Centers.

VIBE (Verification Initiative for Business Enterprises) is intended to provide USCIS with an alternative means of verifying the financial viability of companies petitioning to employ foreign workers, along with other information about the company, such as the type of business and number of employees. USCIS announced in September 2009 that the contract had been awarded to Dun & Bradstreet for $35.5 million. A USCIS synopsis issued in April 2009 notes that:

…the Government requires licensing terms that allow the information provided to be retained in adjudicator files in perpetuity. Further, this information may be viewed and used by other Government agencies for legal proceedings, such as court hearings or similar administrative hearing activities related to granting or denying immigration benefits. It has also been determined through market research that industry does not provide warranty terms regarding the accuracy of information provided. The Government may potentially use the information in a court of law, as such, it must be supportable.

The award notice is available at https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=43fee0e75bdb345ad3010794271abd2b&_cview=1. A related letter from USCIS Director Alejandro Mayorkas to Sen. Charles Grassley is available at http://www.nationofimmigrators.com/wp-content/uploads/2009/12/Mayorkas%20letter%20to%20Grassley%20re%20H-1B%20visa%20fraud.pdf. A blog commentary on the VIBE program is available at http://blogs.ilw.com/angelopaparelli/2009/12/bad-bad-bad-immigration-vibrations-from-uscis.html.

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6. ABIL Global: Update From Germany/Europe

German residence and work permit regulations are a genuinely complex matter. Therefore, regulations have to be carefully observed when conducting international transfers. Even if the German labor market is basically still affected by the so-called ban on recruitment (i.e., the categorical ban on the recruitment of foreign employees), in practice foreign workers can be employed under certain circumstances.

In particular, the employment of highly qualified staff is facilitated in numerous ways. Nevertheless, there is a considerable accumulated need against the background of intensified global competition for the most qualified labor. Therefore, for example, the earnings level for executives and the highly skilled, which has been 86.400 € per year (until December 31, 2008) and presently amounts to 66.000 € per year (as of January 1, 2010), should be reduced further to enable medium-sized companies to employ such labor to a larger extent. There is also hope because of the intended omission of the examination of the labor market for engineers from the new EU member states.

Because Germany had elections in September 2009 resulting in a new coalition government between the Christian Democrats (CDU) and the Free Democratic Party (FDP), further reforms or amendments of the existing laws on a larger scale are unlikely in the short- to midterm. Further developments remain to be seen. In the meantime, the following excerpt from the coalition agreement may give a hint of the route the government is likely to take:

We want to increase the attractiveness of Germany for highly qualified staff and steer immigration to Germany. Administrative barriers must be reduced for qualified staff. Access for highly qualified foreigners and foreign experts must be adjusted to the requirements of the German labor market and structured according to coherent, clear, transparent, and weighted criteria based on need, qualification, and integration potential. In addition, we plan to review the regulations on self-employment, jobs for students with a German university degree, jobs for artists, athletes, and seasonal workers; and to strive for simplification. [Translated, edited.]

The same applies at the European Union (EU) level, where the EU “Blue Card,” which had been put up for discussion in 2007, was recently adopted in May 2009 (Council Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment; May 25, 2009). The EU Commission, with particular emphasis on work and residence permits for highly qualified employees from third countries (non-EU), intends to increase the competitiveness of the European economy via the Blue Card. The Blue Card is expected to attract experts to Europe instead of the U.S., Australia, or Canada. According to an analysis by the EU, the latter have been the preferred work countries until now.

The EU Commission wants to introduce a simplified, accelerated, and EU-standard admission process for persons who have special professional qualifications, an employment contract with a company based in the EU, and earnings at least triple the national minimum wage. By means of the Blue Card, highly qualified staff will be granted a residence and work permit that includes special rights; e.g., if accompanied by family members. The directive is intended to encourage further mobility within the EU of highly qualified individuals. It acknowledges labor shortages and so its provisions are intended to:

foster admission and mobility — for the purposes of highly qualified employment — of third-country nationals for stays of more than three months, in order to make the [EU] Community more attractive to such workers from around the world and sustain its competitiveness and economic growth. To reach these goals, it is necessary to facilitate the admission of highly qualified workers and their families by establishing a fast-track admission procedure and by granting them equal social and economic rights as nationals of the host Member State in a number of areas. It is also necessary to take into account the priorities, labor market needs and reception capacities of the Member States.

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7. New Publications and Items of Interest

Dr. Sunil Mithas and Dr. Henry C. Lucas, Jr., professors at the University of Maryland, have authored a study published by the Institute for Operations Research and the Management Sciences, “Are Foreign IT Workers Cheaper? U.S. Visa Policies and Compensation of Information Technology Professionals.” The study finds that foreign IT professionals (those without U.S. citizenship and those without H-1B or other work visas) actually earn a salary premium when compared to U.S. citizen IT professionals when controlling for human capital attributes. The article is available from http://www.informs.org/.

The Department of Labor has released a new online advisor to help employers and others understand how to comply with requirements under the H-1B visa program. The advisor describes the program’s standards and provides detailed information about employers’ and workers’ rights and responsibilities. It outlines notification requirements, monetary issues, worksite issues, recordkeeping duties, worker protections, and enforcement issues. The advisor focuses solely on compliance with the requirements enforced by the Department’s Wage and Hour Division. It does not review the process for participating in the program or for invoking H-1B visa portability.

The Department’s announcement is available at http://www.dol.gov/opa/media/press/asp/oasp20100563.htm. The advisor is available at http://www.dol.gov/elaws/h1b.htm.

 

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8. Recent News From ABIL Members

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm) was quoted in the May 28, 2010, edition of the New York Times on E-2 visas. The article concerns Dean and Laura Franks, a British couple who ran a Maine eatery for nine years before being forced to leave the U.S. because their E-2 visa was not renewed. Calling such cases “the forgotten story of immigration,” Mr. Paparelli noted that “[t]he headlines deal with Arizona and border crossings, but these are real people too. This is what happens when you play by the rules.” For more, see http://www.nytimes.com/2010/05/30/us/30visas.html.

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) recently discussed the origins of the EB-5 immigrant investor program; the importance of EB-5 regional centers; and the ambiguities, complexities, challenges, and opportunities of the program. The LexisNexis podcast is available at  http://www.lexisnexis.com/Community/emergingissues/blogs/podcasts2/archive/2010/05/20/LexisNexis_AE00_-Emerging-Issues-Law-Community-Podcast-featuring-Dan-Kowalski-and-Stephen-Yale_2D00_Loehr-on-the-EB_2D00_5-Investor-Visa-Program.aspx.

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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 Conducts Comprehensive Policy Review, Holds Session on RFEs – USCIS has launched a comprehensive effort to review all agency policies with the participation of both its workforce and the public.

2. Controversial New Arizona Statute Signed Into Law – The governor of Arizona signed a law that directs local police to make immigration status determinations and makes it a misdemeanor to lack proper immigration documents.

3. DOS Requests Comments on SEVIS – The SEVIS forms have been revised to clarify language used and remove unnecessary data collection.

4. ICE Plans More Visa Security Units – The program is intended to maximize the visa process as a counterterrorism tool.

5. USCIS Advises Foreign Nationals Whose Work Permits Expire Before CNMI-Only Visa Categories Are Available – Certain foreign nationals without umbrella permits whose work permits expire before new visa categories are available to them may be eligible for an interim status.

6. ABIL Global: The Scope of Immigration Laws for International Investors in Brazil – The entrepreneur has to convince the Brazilian authorities that his or her work will bring new jobs to Brazilians and develop the Brazilian market.

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 Conducts Comprehensive Policy Review, Holds Session on RFEs

U.S. Citizenship and Immigration Services (USCIS) has launched a comprehensive effort to review all agency policies with the participation of both its workforce and the public. USCIS invited outside stakeholders to identify their highest priorities for the policy review through a two-week survey that ended on April 29, 2010. USCIS said it will publish a summary of the results later this spring.

Throughout the policy review, USCIS said it will continue to seek feedback from its workforce and external stakeholders to ensure that the resulting policies are “informed, responsive, and effective.”

As part of USCIS’s overall efforts to review agency policies, on April 12, 2010, USCIS Director Alejandro Mayorkas and the head of the Service Center Operations Directorate, Donald Neufeld, held a listening session for U.S. national stakeholders to review and revise the Request for Evidence (RFE) templates. This was the first time that the USCIS held a dialogue with stakeholders to obtain their feedback on how to improve the RFE process and to clarify any concerns that have arisen due to recent changes, the Alliance of Business Immigration Lawyers noted. The reviewed types included the O (extraordinary ability or expertise), P (athletes and entertainers), Q (cultural exchange), and EB-1 (first preference extraordinary ability) visa categories.

At the session, a number of people asked about a January 8, 2010, guidance memorandum by Mr. Neufeld, and expressed unease about the number of RFEs that are being issued on cases that used to be approved. Mr. Mayorkas and Mr. Neufeld replied that they will offer more opportunities for the public to understand the adjudication process while taking into account the needs of employers, attorneys, and immigrants.

USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d0c77dfffc108210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=66681f7af1208210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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2. Controversial New Arizona Statute Signed Into Law

On April 23, 2010, Governor Jan Brewer of Arizona signed a tough new measure (S.B. 1070) into law that directs local police to make immigration status determinations if there is a “reasonable suspicion” a person may be undocumented, and makes it a misdemeanor to lack proper immigration documents. The law is scheduled to take effect by August.

Gov. Brewer said the new law “represents another tool for our state to use as we work to solve a crisis we did not create and the federal government has refused to fix.” Sen. John McCain (R-Ariz.), who is campaigning in a primary against a challenger who has made immigration a main issue, came out in favor of the law only hours before its passage by the state Senate.

Controversy and protests have swirled around the new law. Those opposed are especially concerned about racial and ethnic profiling and the effects of criminalizing a person’s failure to carry immigration documents. “A lot of U.S. citizens are going to be swept up in the application of this law for something as simple as having an accent and leaving their wallet at home,” warned Alessandra Soler Meetze, president of the American Civil Liberties Union (ACLU) of Arizona. The ACLU plans to sue to block the legislation.

Moments after Gov. Brewer signed the law, the Board of Governors of the American Immigration Lawyers Association called for a boycott of Arizona, instructing its Executive Committee to move the Association’s fall 2010 conference, previously scheduled for Arizona, to another state. AILA President Bernie Wolfsdorf explained, “We cannot in good conscience spend association dollars in a state that dehumanizes the people we represent and fight for. What Governor Brewer has done by signing this bill into law is to validate all of the irrational fears by people who are not willing to acknowledge the economic and cultural benefits of immigration to our country. If Arizonans are serious about ending illegal immigration, they should be the first in line at the United States Capitol to urge Congress to the do the right thing and pass comprehensive immigration reform.”

AILA stated that in addition to being unconstitutional under the Supremacy Clause of the U.S. Constitution, the law effectively authorizes police to engage in racial profiling and permits citizens to sue any state or local agency if they believe it is failing to enforce the law. “On top of making laws that will be struck down in the courts, it will hurt business and even bankrupt local municipalities. We’ve seen this happen in other localities trying to be tough on immigration but in the end hurting their own economies,” Mr. Wolfsdorf said. AILA cited the example of Tulsa, Oklahoma, where two months after a harsh 2008 law went into effect, construction work was being left unfinished and local businesses were losing customers. AILA also noted that such laws add enforcement of federal immigration law to already overburdened local police departments. Police unions backed the new law, but the state police chief’s association opposed the bill, noting that it could damage trust in immigrant communities among potential witnesses.

PolitiFact recently published a fact-checking article examining the issue of racial or ethnic profiling with respect to the new law. The article is available at http://www.politifact.com/truth-o-meter/statements/2010/apr/28/alfredo-gutierrez/arizona-immigration-law-allows-police-question-any/.

The text of the new Arizona law is at http://www.azleg.gov/legtext/49leg/2r/bills/sb1070h.pdf. A summary of the law is at http://www.azleg.gov/legtext/49leg/2r/summary/h.sb1070_04-15-10_houseengrossed.doc.htm.

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3. DOS Requests Comments on SEVIS

The Department of State has issued a request for comments on the recording, reporting, and data collection requirements under the Student and Exchange Visitor Information System (SEVIS). SEVIS is used to monitor foreign students and exchange students in the United States. The forms have been revised to clarify language used and remove unnecessary data collection. Comments will be accepted up to 60 days from April 22, 2010, and may be submitted by e-mail, mail, or online to the location named in the notice, which is available at http://edocket.access.gpo.gov/2010/pdf/2010-9325.pdf.
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4. ICE Plans More Visa Security Units

U.S. Immigration and Customs Enforcement (ICE) recently announced that the agency plans to expand its visa security units from 12 countries to 16 this year and an additional country next year. ICE works with the Department of State to identify high-risk posts to receive visa security units. The program, intended to maximize the visa process as a counterterrorism tool, assigns experienced special agents to visa security units overseas to review visa applications, initiate investigations, and provide advice and training to consular officers.

The list of countries to be added has not been announced, but the Department of Homeland Security separately has identified 14 nations whose citizens underwent mandatory secondary screening for a temporary period after the Christmas Day bombing attempt: Afghanistan, Algeria, Cuba, Iran, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia, Sudan, Syria, and Yemen. Currently, ICE has visa security units in Canada, Egypt, Germany, Hong Kong, Indonesia, Jordan, Morocco, Pakistan, Philippines, Saudi Arabia, United Arab Emirates, and Venezuela.

Sen. John Cornyn (R-Tex.) and Rep. Lamar Smith (R-Tex.) introduced companion bills on March 4, 2010, in the House and Senate to fund 16 visa security units in high-risk nations, including Algeria, Colombia, India, Iraq, Jerusalem, Kuala Lumpur, Kuwait, Lebanon, Mexico, Nigeria, South Africa, Syria, Tel Aviv, Turkey, United Kingdom, and Yemen.

The Department of Homeland Security’s Office of Inspector General released a report in 2008 on the visa security unit program. The report is available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_08-79_Jul08.pdf.

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5. USCIS Advises Foreign Nationals Whose Work Permits Expire Before CNMI-Only Visa Categories Are Available

U.S. Citizenship and Immigration Services (USCIS) announced on April 21, 2010, that it will grant parole-in-place status to certain foreign nationals in the Commonwealth of the Northern Mariana Islands (CNMI). Foreign nationals without umbrella permits whose work permits expire before new visa categories are available to them under federal immigration laws may be eligible for this interim status.

Certain employers and their foreign national employees did not apply for umbrella permits covering the two-year transition period to federal immigration law. They may have planned to apply for CNMI-only transitional worker visas immediately after the transition period began in November 2009. However, a court ruling that month stopped this nonimmigrant category from being available. As a result, some foreign nationals face losing their legal immigration status because of a gap between the expiration of their current CNMI work permit and the availability of the new “CNMI-Only Transitional Worker” status.

Certain foreign nationals with CNMI investor permits may also face a gap between the expiration date of their CNMI investor permit and the availability of the “CNMI-Only E-2 Investor” status.

Parole-in-place would give affected foreign nationals authorization under federal immigration law to remain in the CNMI and permit continued employment authorization until the CNMI-only transitional worker program and the CNMI investor status are implemented.

USCIS’s announcement includes details about how and where to apply for parole-in-place and what documents to submit. The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=72aaf95c93228210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. ABIL Global: The Scope of Immigration Laws for International Investors in Brazil

From the moment we retrace a historical review of immigration’s legislative structure for investors in Brazil, we perceive that in the last 11 years the Entrepreneurs’ Visa had three different normative resolutions with their respective minimum investment. Normative Resolution N. 28, from November 25, 1998, originally defines that the foreign investment has to be US$ 200,000.

On October 6, 2004, the Brazilian legislature altered the requirements and modified this resolution. The new Normative Resolution, N. 60, established the foreign investment as US$ 50,000.

Recently, a new resolution, Normative Resolution N. 84, was established in February 10, 2009, with a minimum investment of R$ 150,000 (about US$ 80,000). This new resolution includes more detailed procedures related to the current and sustainable Brazilian economy.

In both cases, an absorption plan of Brazilian manpower must be presented. In addition to this requirement, the sponsor of the visa is always the Brazilian company of which the foreign national is partner.

The Brazilian company must open a Brazilian bank (in Reais) account in order to receive the foreign investment. The entrepreneur needs to send the money in his or her own name (individual) for the bank account of the Brazilian company. It is not mandatory that all the money be invested at the same time, but the money must be registered with the Brazilian Central Bank. To certify this investment, the articles of Incorporation must include a clause stating that the foreign money is integrated into the Brazilian company.

Subsequent to the investment, the entrepreneurs must obtain a conditional permanent visa, valid for three years. During this three-year period, the foreign national may only provide services for the Brazilian company that sponsored the visa. This condition is written in his or her Brazilian ID Card.

The creation of employment and revenue in Brazil is the most important condition for obtaining this visa. Related to that, the absorption plan of Brazilian manpower must be executed in the first year of the Brazilian company after the arrival of the entrepreneur. The company may hire and/or employ Brazilian manpower other than its stated direct absorption plan of the investor program, but it is mandatory to fulfill the original numbers.

For the investor program, it is mandatory to present the number of employees and posts, the salaries that will be paid, and the amount of investment in the capacity and qualifications of the Brazilian employees in the first three years. It is also necessary to include information about the economic section and localization of the Brazilian company and its importance for the development of the relevant region. Due to a diversified Brazilian social structure, the investment will have a different effect according to the region.

In this connection (Investment-Social Impact), it should be emphasized that it is not mandatory to invest the amount of R$ 150,000 but a foreign investment is mandatory. Specifically, the social interest issue is considered very important, and the entrepreneur has to convince the Brazilian authorities that his or her work will bring new jobs to Brazilians and develop the Brazilian market; i.e., improve the life of the Brazilian people. If the entrepreneurs are from South America, they will receive special consideration from the members of the National Immigration Council.

There are no minimum qualifications to apply for an investor visa except for the investment. The foreign national may be accompanied by his or her family (spouse and children), who will receive the status of dependents. Once the application is filed with the Ministry of Labor, the processing time is usually 30 days, while the processing time with the National Immigration Council is about 5 months.

The global economic crisis did not affect investments in Brazil. In fact, it made foreign entrepreneurs see that Brazil is a very good country in which to invest, with its stable economy, democracy, consumer market, and natural resources. Unfortunately, we should not forget the Brazilian bureaucracy and its effects on the timeframe of the constitution of a Brazilian company. However, Brazil is improving and let us not forget that the country was built by foreign nationals and will only become a much more developed country with their efforts.

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7. New Publications and Items of Interest

Immigration and occupations. The New York Times recently analyzed Census data and surveys of American attitudes about immigration. The analysis found that although the common perception is that a surge in immigration has overwhelmed the U.S. with low-wage foreign laborers, in reality the 25 million immigrants who live in the largest metropolitan areas in the U.S. are nearly evenly distributed across jobs and incomes, and in 14 of the 25 largest metro areas, more immigrants are employed in white-collar occupations (e.g., professionals, technicians, administrators) than in lower-wage work (e.g., construction, manufacturing, cleaning). The conclusions were based on Census data, a survey published in February’s American Political Science Review, and data analysis conducted by the Fiscal Policy Institute for the New York Times.

The New York Times article is available at http://www.nytimes.com/2010/04/16/us/16skilled.html.

Green card statistics. The Department of Homeland Security’s Office of Immigration Statistics released its Annual Flow Report in April 2010. The report shows that in 2009, a total of 1,130,818 persons became legal permanent residents (LPRs) in the U.S. Nearly two-thirds were granted green cards based on a family relationship. The leading countries of birth of new LPRs were Mexico (15 percent), China (6 percent), and the Philippines (5 percent). Legal immigration increased 2.1 percent from 1,107,126 in 2008 to 1,130,818 in 2009. LPR adjustments of status increased 4.2 percent from 640,568 in 2008 to 667,776 in 2009. Adjustments of status in 2009 were driven by a decrease in applications pending a decision rather than an increasing number of applications received during 2009. Fifty-nine percent of new LPRs in 2009 were adjustments of status and 41 percent were new arrivals California was the state of residence of one-fifth (20 percent) of persons gaining LPR status in 2009. Other leading states of residence included New York (13 percent), Florida (11 percent), Texas (8.4 percent), and New Jersey (5.2 percent).

The report is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/lpr_fr_2009.pdf.

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8. Recent News From ABIL Members

Mark A. Ivener (bio: http://www.abil.com/lawyers/lawyers-ivener.cfm) had an article published in the April 2010 STEP Journal (Society of Trust and Estate Practitioners), “Three Important Immigration Issues Affecting Trust and Estate Attorneys: EB-5 Investor Green Cards; Green Cards and the Exit Tax; and Unplanned U.S. Citizenship.”

Stephen W. Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) commented that the new Arizona law is a recipe for confusion, in PolitiFact. “The courts will have a hard time deciding what constitutes a reasonable suspicion,” he said. Mr. Yale-Loehr also noted in the April 27, 2010, edition of ComputerWorld that the papers immigrants will now be required to carry in Arizona “are very valuable and [immigrants] usually don’t want to take them with you to the gym or the grocery store.” Mr. Yale-Loehr noted that employers will, at the least, “be putting out memos to all of their H-1B workers telling them to make sure they carry around their H-1B documents at all times. Depending on how the law is enforced in the long run, Mr. Yale-Loehr said, “it could slow down the willingness of companies to invest in Arizona if they hire a lot of noncitizens.” The PolitiFact article is available at http://www.politifact.com/truth-o-meter/statements/2010/apr/28/alfredo-gutierrez/arizona-immigration-law-allows-police-question-any/. The ComputerWorld article is available at http://www.computerworld.com/s/article/9176019/Arizona_s_new_papers_please_law_may_hurt_H_1B_workers.

Maria Lianides Celebi (bio: http://www.abil.com/lawyers/lawyers-celebi.cfm), ABIL Global member, was invited to a meeting with Turkey’s Minister of Labor and Social Security, Omer Dincer, to discuss work permits, among other labor topics. The meeting was arranged by the American Chamber of Commerce, which asked Ms. Celebi as their Work Permit Advisor. Discussed at the meeting were issues and questions regarding the issuance of work permits, particularly since changes in Turkey’s law this winter.

During the meeting, Ms. Celebi and her group conveyed concern about whether the one-year interim work permits for engineers/architects have been implemented; the lack of public guidance over the implications of the new biographical questions on the work permit application; and the lack of transparency in denials, among other things. Minister Dincer said he was assured by the Work Permit Directorate that the one-year interim work permits for engineers/architects are in place. Minister Dincer also expressed a desire to keep adjudications down to the new one-month statutory period.

Ms. Celebi noted that electronic filing of work permit applications was recently implemented by the Turkish Ministry. However, supporting documents must still be delivered in hard copy.

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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/frvi/bulletin/bulletin_1360.html

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Headlines:

1. ABIL Meets With USCIS, Proposes Immigration Reforms – ABIL said it believes that employment-based immigration reforms should encompass changes in both nonimmigrant and immigrant visa categories so that the U.S. becomes the most attractive global destination for highly skilled and essential workers.

2. USCIS To Accept FY 2011 H-1B Petitions Beginning April 1 – USCIS will begin accepting H-1B petitions subject to the FY 2011 cap on April 1, 2010.

3. DHS Announces E-Verify Initiatives – The initiatives include a new agreement with the Department of Justice to streamline the adjudication process in cases of E-Verify misuse and discrimination.

4. Office of Foreign Labor Certification Releases Application for Temporary Employment Certification in Fillable PDF Format – The new format provides users with the option to save and reuse the information on the form for future applications.

5. DOL Updates Filing Locations for Certain Prevailing Wage and Labor Cert Programs – The Department of Labor announced a technical change to the filing location address for prevailing wage determination requests in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs, as well as for prevailing wage determination requests for use in the Commonwealth of the Northern Mariana Islands.

6. USCIS Changes Filing Location for Advance Parole Application – The change of filing location for the Application for Travel Document is part of an overall effort to transition the intake of some USCIS forms from local offices and Service Centers to USCIS Lockbox facilities.

7. USCIS Extends Deferred Enforced Departure for Liberians – The sixth-month automatic extension of existing Employment Authorization Documents (EADs) will permit eligible Liberians to continue working while they file their applications for new EADs that will cover the full 12 months of the DED extension.

8. DHS Adds Greece to VWP – Greek nationals can travel under the VWP beginning April 5, 2010.

9. USCIS Releases TPS Application Tips – USCIS provided information and tips about common mistakes in temporary protected status applications.

10. USCIS Reminds Chilean Nationals of Available Benefits – In light of the recent natural catastrophes in Chile, USCIS reminded Chileans of U.S. immigration benefits available to eligible Chilean nationals upon request.

11. USCIS Releases Guidance on Adjudicating P-2 Petitions – In particular, the memo amends previous policy guidance stating that the Service Centers must contact USCIS Headquarters before adjudicating reciprocal exchange agreements that have not been approved previously.

12. Congress Opens H-1B Program to ‘All Smart Educated People’ Worldwide – The legislation, titled the “April Fool’s H-1B Act of 2010,” is expected to be signed immediately by President Obama now that he is done with health care reform and other distractions.

13. ABIL Global: Temporary Foreign Workers – An Important Source of Labor Supply in Canada – Canada’s Temporary Foreign Worker Program enables Canadian employers to hire eligible foreign nationals to work for them in Canada for a specified duration, provided they can demonstrate that the employers cannot find a suitable Canadian/permanent resident to do the job and that the entry of the foreign national will not have a negative impact on the Canadian labor market.

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

15. Recent News from ABIL Members – Recent News from ABIL Members

16. Government Agency Links – Government Agency Links

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Details:

1. ABIL Meets With USCIS, Proposes Immigration Reforms

On March 3, 2010, the Alliance of Business Immigration Lawyers (ABIL) met with Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services (USCIS), and several members of his leadership team. ABIL said it believes that employment-based immigration reforms should encompass changes in both nonimmigrant and immigrant visa categories so that the U.S. becomes the most attractive global destination for highly skilled and essential workers.

ABIL noted inconsistent application of regulations from office to office and recent sudden changes announced by USCIS, such as the delay in the I-9 effective date, which have resulted in companies struggling to meet moving targets and comply with the law. Mr. Mayorkas noted USCIS’ successes but also acknowledged some mistakes. He said USCIS is reviewing policies and field guidance and will determine what should be reaffirmed, withdrawn, or revised in light of input from stakeholders and best practices. He said the agency is developing a system for receiving comments from stakeholders before any new policy change.

ABIL emphasized that H-1B employers should have the right to an attorney during site visits. Moreover, ABIL requested that USCIS reconsider its determination that an individual does not continue to be in lawful status while a case is on appeal.

Among other things, ABIL proposed legitimate avenues under the immigration laws for entrepreneurs to start U.S. businesses, large and small, and thereby obtain work visas and permanent residence. ABIL also proposed legalizing the status of the undocumented in the U.S. so that they may be employed lawfully and contribute to the growth of the economy and the welfare and well-being of the U.S. and its citizens.

ABIL’s membership includes 20 of the top U.S. business immigration law firms, each led by a prominent member of the U.S. immigration bar. ABIL member firms employ over 200 attorneys (400+ total staff) devoted to business immigration in 22 major U.S. cities, plus Brussels, Cologne, Hong Kong, Istanbul, Lima, London, Mexico City, Montreal, Monterrey, Mumbai, Sao Paulo, Shanghai, Sydney, Tokyo, Toronto and Vancouver.

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2. USCIS To Accept FY 2011 H-1B Petitions Beginning April 1

U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap on April 1, 2010. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee, not the date the petition is postmarked.

The fiscal year cap (numerical limitation on H-1B petitions) for FY 2011 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree or higher are exempt from the H-1B cap.

USCIS said it will monitor the number of petitions received and will announce the date on which the agency receives the necessary number of petitions to meet the H-1B cap. If needed, USCIS will randomly select the petitions required to reach the numerical limit from those received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations. Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the H-1B cap until December 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories seeking work dates starting in FYs 2010 or 2011.

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

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

H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence. USCIS has developed detailed information, including a checklist, to assist in the completion and submission of a FY 2011 H-1B petition.

Contact your Alliance of Business Immigration Lawyers for help in filing H-1B petitions.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5b29dd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The checklist is available at http://www.uscis.gov/files/form/m-735.pdf. Additional information about the FY 2011 H-1B program is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD.

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3. DHS Announces E-Verify Initiatives

The Department of Homeland Security (DHS) announced a trio of E-Verify initiatives on March 17, 2010, including (1) a new agreement with the Department of Justice intended to streamline the adjudication process in cases of E-Verify misuse and discrimination; (2) an informational telephone hotline for workers seeking E-Verify information; and (3) new training videos in English and Spanish on E-Verify procedures and policies, employee rights, and employer responsibilities.

The Memorandum of Agreement signed between USCIS and the Department of Justice’s Office of Special Counsel for Unfair Immigration-Related Employment Practices establishes a streamlined process for addressing potential cases of discrimination and employer misuse of E-Verify and establishes a protocol between USCIS and the Department of Justice for referring matters that fall within the agencies’ respective jurisdictions.

The USCIS E-Verify help line will offer employees information about the E-Verify process, as well as assistance in completing the Form I-9 (Employment Eligibility Verification). Callers can also use the help line to file complaints about possible discrimination or employer misuse of the E-Verify program. The hotline number is (888) 897-7781. It is expected to be active beginning April 5, 2010.

The two new educational training videos were created by the DHS Office for Civil Rights and Civil Liberties and are viewable at http://www.dhs.gov/e-verify and http://www.youtube.com/ushomelandsecurity.

DHS reports that more than 192,000 participating employers at more than 705,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility. Since October 1, 2009, E-Verify has processed more than six million queries.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=c7ddadd907c67210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=70beadd907c67210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The Memorandum of Agreement between USCIS and the Department of Justice is available at http://www.uscis.gov/USCIS/Native%20Docs/USCIS_DOJ%20MOA_(signed)_17Mar10.pdf.

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4. Office of Foreign Labor Certification Releases Application for Temporary Employment Certification in Fillable PDF Format

To support implementation of the new H-2A regulations and current H-2B regulations, the Department of Labor’s Office of Foreign Labor Certification (OFLC) is making available the ETA Form 9142, Application for Temporary Employment Certification, in a fillable PDF format. The OFLC said the new format provides users with the option to save and reuse the information on the form for future applications.

The fillable form is available at http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9142.pdf.

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5. DOL Updates Filing Locations for Certain Prevailing Wage and Labor Cert Programs

The Department of Labor announced on March 12, 2010, a technical change to the filing location address for prevailing wage determination requests in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs, as well as for prevailing wage determination requests for use in the Commonwealth of the Northern Mariana Islands.

The notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-5443.pdf.

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6. USCIS Changes Filing Location for Advance Parole Application

On March 19, 2010, U.S. Citizenship and Immigration Services (USCIS) announced revised filing instructions and addresses for applicants filing an Application for Travel Document (Form I-131), which is used to apply for a travel document, reentry permit, or advance parole. The agency said the change of filing location is part of an overall effort to transition the intake of some USCIS forms from local offices and Service Centers to USCIS Lockbox facilities.

Beginning March 19, 2010, applicants will file their applications at the USCIS Vermont Service Center or at one of the USCIS Lockbox facilities.

The USCIS Service Centers will forward incorrectly filed I-131 applications to the USCIS Lockbox facilities until Monday, April 19, 2010. After that date, incorrectly filed applications will be returned to the applicant, with a note to send the application to the correct location.

Those who are currently in removal proceedings or have been previously removed from the U.S. should submit requests to the Department of Homeland Security/Immigration and Customs Enforcement, Office of International Affairs, Attn: Section Chief, Law Enforcement Parole Branch, 800 North Capitol Street, Washington, DC  20536.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=81c55ddca7977210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. Information about the form and links to the form and instructions are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b11747a55773d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD.

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7. USCIS Extends Deferred Enforced Departure for Liberians

On March 19, 2010, U.S. Citizenship and Immigration Services (USCIS) automatically extended employment authorization for Liberian nationals covered under Deferred Enforced Departure (DED) through September 30, 2010, following President Barack Obama’s announcement of his decision to extend DED through September 30, 2011, for qualified Liberians and those persons without nationality who last habitually resided in Liberia. USCIS said that the sixth-month automatic extension of existing Employment Authorization Documents (EADs) will permit eligible Liberians to continue working while they file their applications for new EADs that will cover the full 12 months of the DED extension and for USCIS to complete processing and issuance of those new EADs.

Although DED was scheduled to end for Liberian nationals on March 31, 2010, President Obama determined that there are compelling foreign policy reasons to continue deferring enforced departure from the U.S. for eligible Liberian nationals presently living in the U.S. under the existing grant of DED for 18 additional months.

Certain individuals are ineligible for DED, USCIS noted, including Liberians who did not have temporary protected status (TPS) on September 30, 2007, and are therefore not covered under current DED; certain criminals; persons subject to the mandatory bars to TPS; and persons whose removal is in the interest of the U.S.

In addition to automatically extending the validity of employment authorization documents for Liberian nationals covered under DED, USCIS published a notice in the Federal Register on March 30, 2010, with instructions on how to obtain employment authorization for the remainder of the DED extension. The automatic extension covers EADs issued on Form I–766, Employment Authorization Document, bearing an expiration date of March 31, 2010. These EADs must also bear the notation “A–11” on the face of the card under “Category.”

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f47a88eecf777210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD and the Federal Register notice concerning work authorization is available at http://edocket.access.gpo.gov/2010/pdf/2010-7115.pdf. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f11b88eecf777210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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8. DHS Adds Greece to VWP

On March 9, 2010, the Department of Homeland Security designated Greece as a member of the Visa Waiver Program (VWP). Greek nationals can travel under the VWP beginning April 5, 2010. Potential Greek travelers may apply for travel authorization approval under the Electronic System for Travel Authorization (ESTA) beginning immediately. ESTA approval is now required for all VWP travelers wishing to enter the U.S. DHS published a final rule on the designation of Greece on March 31, 2010.

For more information on the VWP and a list of participating countries, see http://travel.state.gov/visa/temp/without/without_1990.html. The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-7211.pdf.

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9. USCIS Releases TPS Application Tips

On U.S. Citizenship and Immigration Services’ new blog, The Beacon, the agency has provided information and tips about common mistakes in temporary protected status (TPS) applications. Specifically, USCIS said, it has received thousands of applications since the designation of Haiti for TPS, and has noticed the following problems that may cause delays or rejections:

1. Not including the appropriate filing fee. Those who cannot afford to pay the filling fee may request a fee waiver.
2. Not completing every question on the form.
3. Not including the applicant’s A-number (if he or she has one).
4. Not signing the application.
5. Using an incorrect form to apply for TPS. Use only forms I-821 and I-765 to apply for TPS.

The tips were provided on March 5, 2010, at http://www.uscis.gov/blog/.

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10. USCIS Reminds Chilean Nationals of Available Benefits

In light of the recent earthquakes in Chile, U.S. Citizenship and Immigration Services (USCIS) recently reminded Chileans of U.S. immigration benefits available to eligible Chilean nationals upon request. Options may include the grant of an application for change or extension of nonimmigrant status on behalf of a Chilean national who is currently in the U.S., “even in cases where the request is submitted after the individual’s authorized period of admission has expired”; expedited adjudication and approval, where possible, of requests for off-campus employment authorization due to severe economic hardship for F-1 students; and expedited issuance of employment authorization where appropriate, among others.

For more information on immigration-related benefits available to Chileans, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=c618d0438c947210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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11. USCIS Releases Guidance on Adjudicating P-2 Petitions

U.S. Citizenship and Immigration Services (USCIS) issued a memorandum to the field to provide guidance on processing and adjudicating Form I-129, Petition for Nonimmigrant Worker, filed on behalf of P-2 nonimmigrants. In particular, the memo amends previous policy guidance stating that the Service Centers must contact USCIS Headquarters before adjudicating reciprocal exchange agreements that have not been approved previously.

The memo states that a petitioner must submit evidence that an appropriate labor organization in the U.S. was involved in negotiating, or has concurred with, the reciprocal exchange of the U.S. and foreign artists or entertainers. Given that the Service Centers possess the entire record, USCIS said, they are capable of determining if the reciprocal agreement meets the regulatory requirements. Effective immediately, service centers are not required to contact Headquarters if they encounter a reciprocal agreement not previously approved.

Because there is no requirement that P-2 entertainers be of exceptional ability, supporting documents are limited to basic items: the consultation, a copy of the reciprocal agreement, and evidence that the beneficiaries are subject to the reciprocal exchange.

Four P-2 reciprocal agreements have been negotiated: (1) between the American Federation of Musicians (U.S.) and the American Federation of Musicians (Canada); (2) between Actors’ Equity Association (U.S.) and the Canadian Actors’ Equity Association; (3) between Actors’ Equity Association (U.S.) and the British Actors’ Equity Association; and (4) between the International Council of Air Shows and the Canadian Air Show Association. If a reciprocal agreement is submitted other than these four, USCIS said, the adjudicator must review the agreement to determine if the agreement adheres to the regulatory standard. A list of any new reciprocal agreements is maintained at Headquarters.

The memo is available at http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2010/p-2-memo-03-11-10.pdf.

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12. Congress Opens H-1B Program to ‘All Smart Educated People’ Worldwide

In a stunning move, both houses of Congress passed surprise legislation with no debate on April 1, 2010, opening the H-1B program to “all smart educated people” worldwide and eliminating the cap. “Let’s just throw open the doors and see what happens,” Rep. John Boehner (R-Ohio) said. Sen. Chuck Schumer (D-NY) chirped, “Now this is what I call true bipartisanship.” Several members noted that his teeth seemed whiter.

The legislation, titled the “April Fool’s H-1B Act of 2010,” is expected to be signed immediately by President Obama now that he is done with health care reform and other distractions.

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13. ABIL Global: Temporary Foreign Workers – An Important Source of Labor Supply in Canada

Canada’s Temporary Foreign Worker Program enables Canadian employers to hire eligible foreign nationals to work for them in Canada for a specified duration, provided they can demonstrate that the employers cannot find a suitable Canadian/permanent resident to do the job and that the entry of the foreign national will not have a negative impact on the Canadian labor market. Employers must note that all individuals wishing to work in Canada require a work permit.

In most cases, unless an exemption is available (a discussion of which is outside the scope of this article), an employer must obtain a favorable labor market opinion (LMO) from Human Resources and Skills Development Canada/Service Canada (Service Canada) before the foreign national can apply to Citizenship and Immigration Canada (CIC) to obtain a work permit. An LMO is Service Canada’s opinion on the likely impact that hiring the foreign national will have on the Canadian labor market.

If an LMO is required to hire a particular foreign national, the prospective Canadian employer must submit an application to Service Canada setting out, among other things: the occupation for which the foreign national is required; details of the job offer including wages and working conditions that will apply to the foreign worker; advertising and recruitment efforts on the employer’s part to hire a Canadian or permanent resident to fill the position; the benefits that the foreign worker’s employment may have to the Canadian labor market; a copy of the employment contract (required in some cases); the number of Canadians/permanent residents currently employed in the organization; whether any Canadians/permanent residents were laid off in the 12 months preceding the application; and education, experience, and skills (including language skills) required for the position.

The advertising requirements with which an employer must comply depend on the skill level of the occupation for which the LMO is being sought, having regard to the National Occupational Classification (NOC) Skill Levels O, A, B, C, and D. Generally, some combination of advertising on the National Job Bank (or the equivalent in Saskatchewan, Quebec, or the Northwest Territories) and/or conducting similar recruitment activities consistent with the practice within the occupation (e.g., Internet job sites, national newspapers, consulting unions, newsletters, or professional associations) is required for a minimum number of days and for a specified duration prior to making the LMO application. However, the specific requirements vary depending on the occupation at issue and should be carefully considered in each individual case.

Employers should seek legal advice to ensure they comply with the requisite advertising standards applicable to their particular case, because failure to comply with the advertising efforts required for the particular NOC level and category at issue will result in an LMO being denied.

If a favorable LMO is issued, the employer must send a copy of the written confirmation to the worker along with a signed job offer (and employment contract, if required). The foreign national then applies to CIC for a work permit, the issuance of which depends on the foreign national meeting admissibility requirements and is within the discretion of the CIC officer and Canada Visa and Border Services officer assessing the work permit application and the foreign national’s entry into Canada, respectively.

Employers should be aware that any LMO issued to them expires 6 months from the issuance date and unless, within this time frame, the foreign national has applied to CIC for a work permit and certain other requirements have been met, the LMO will be deemed to expire and the employer will need to apply for a new LMO to hire a foreign worker.

Also, it should be noted that extensions of an LMO are no longer permitted. The elimination of the extension application is of particular importance to employers wishing to continue the employment of a foreign national beyond the duration of his or her current work permit. Employers should seek legal advice for their particular situation to ensure that they apply for a new LMO in a timely fashion so they can continue to employ their chosen foreign workers as desired.

Legal advice should also be sought regarding proposed changes to the Temporary Foreign Worker Program that will introduce a number of factors applicable to the assessment of the genuineness of an employer’s job offer of employment under this program. These proposed changes, if enacted, will lead to a more rigorous approach to the assessment of LMO and LMO-exempt cases.

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14. Publications and Items of Interest

New USCIS blog. U.S. Citizenship and Immigration Services (USCIS) has launched The Beacon, the agency’s official blog and newest tool that provides immigration-related information and “fosters an open dialogue with the public.”

USCIS said The Beacon is intended to provide an important resource for information about USCIS as well as “a forum through which readers can engage USCIS staff and others who are interested in immigration and naturalization issues.” USCIS said readers “are encouraged to submit comments, ideas, concerns, and constructive criticism.”

USCIS will review all comments before posting. Detailed guidance is provided on the blog under the comment policy. The Beacon is available at http://www.uscis.gov/blog.

H-1B supply and demand in 2010 and beyond. The National Foundation for American Policy (NFAP) has released a study, “H-1B Visas By the Numbers: 2010 and Beyond,” which concludes that demand for H-1Bs will contribute to employers likely reaching the annual cap in the new fiscal year. “The supply of H-1B visas has been exhausted during or before each of the past seven fiscal years, often leaving employers with no choice but to hire skilled foreign nationals outside the United States or see these scientists, engineers and professionals lost to competitors overseas,” said NFAP Executive Director Stuart Anderson. With the annual flow of H-1Bs representing only 0.06 percent of the U.S. labor force in 2009, the study notes, arguments that H-1B professionals overwhelm the U.S. workforce are not supported by the facts. Surveys of Indian and Chinese professionals who have left the U.S. show that visa constraints played a role in their decision to leave. This exodus, the study argues, will continue absent immigration law reform. Liberalizing H-1B and green card limitations would help employers innovate and create more jobs in the U.S., the study concludes.

The NFAP study is available at http://www.nfap.com/pdf/1003h1b.pdf.

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15. Recent News from ABIL Members

Mark Ivener (bio: http://www.abil.com/lawyers/lawyers-ivener.cfm) presented “EB-5 Investor Green Cards” to the Los Angeles County Bar Association’s EB-5 Seminar, held on March 20, 2010, in Los Angeles, California.

Maria Celebi (bio: http://www.abil.com/lawyers/lawyers-celebi.cfm) delivered a presentation on March 18, 2010, about changes in the Turkish Work Permit laws, on behalf of the American Chamber of Commerce in Turkey (ABFT) at an informational meeting and reception at the U.S. Consulate in Istanbul.

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16. Government Agency Links

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

USCIS Service Center processing times online: 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/frvi/bulletin/bulletin_1360.html

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Headlines:

1. USCIS Changes Filing Location for Employment Authorization Application – USCIS has revised filing instructions and addresses for the I-765.

2. USCIS Revises Permanent Residence Application, Changes Filing Locations – USCIS has posted a revised I-485 and changed the filing locations.

3. Kerry, Lugar Introduce Immigrant Entrepreneur Bill – The “StartUp Visa Act of 2010” would allow certain immigrant entrepreneurs to receive a two-year visa under a new EB-6 category.

4. ETA Announces 2010 Adverse Effect Wage Rates and Maximum Meal and Travel Charges for H-2A Agricultural Worker Employers – The H-2A AEWR is based on USDA data.

5. ICE Updates List of SEVP-Approved Schools – ICE has released the latest updated list of Student and Exchange Visitor Program approved schools.

6. ABIL GLOBAL: News from Australia – This article presents updates on the latest reforms and revisions to immigration laws and regulations.

7. ABIL GLOBAL: News from Mexico – This article presents updates on the latest reforms and revisions to immigration laws and regulations.

8. ABIL GLOBAL: News from Canada – This article presents updates on the latest reforms and revisions to immigration laws and regulations.

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

10. Recent News from ABIL Members – Recent News from ABIL Members

11. Government Agency Links – Government Agency Links

Details:

1. USCIS Changes Filing Location for Employment Authorization Application

U.S. Citizenship and Immigration Services (USCIS) has revised filing instructions and addresses for the Application for Employment Authorization (Form I-765). The change of filing location is part of an overall effort to transition the intake of some benefit forms from Service Centers to USCIS Lockbox facilities, USCIS noted.

Applicants must now submit the I-765 to one of the USCIS Lockbox facilities or the USCIS Vermont Service Center, based on the classification under which they are filing. Detailed guidance can be found in the updated I-765 instructions. The Service Centers will forward incorrectly filed applications to the USCIS Phoenix and Dallas Lockbox facilities until March 26, 2010. After that date, applications incorrectly filed at USCIS Service Centers will be returned to the applicant, with a note to send the application to the correct location.

When filing the I-765 at one of the USCIS Lockbox facilities, the applicant may elect to receive an e-mail and/or text message notifying him or her that the application has been accepted. The applicant must complete an E-Notification of Application/Petition Acceptance (Form G-1145) and attach it to the first page of the application.

Form I-765 may be electronically filed (e-filed) with USCIS when submitted under certain categories.

The USCIS notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3ca0808dfb107210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The form is available at http://www.uscis.gov/files/form/I-765.pdf. For instructions, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=73ddd59cb7a5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=7d316c0b4c3bf110VgnVCM1000004718190aRCRD and http://www.uscis.gov/files/form/i-765instr.pdf.

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2. USCIS Revises Permanent Residence Application, Changes Filing Locations

U.S. Citizenship and Immigration Services (USCIS) announced on February 25, 2010, that it has posted a revised Application to Register Permanent Residence or Adjust Status (Form I-485) and changed the filing locations.

Beginning February 25, 2010, most applicants must submit the I-485 to a USCIS Lockbox facility, depending on the eligibility category under which they are filing, as provided in the form instructions. USCIS Service Centers will forward all I-485 applications to the appropriate Lockbox facility until March 29, 2010. USCIS will accept previous versions of the I-485 until March 29, 2010. After that date, USCIS will only accept the I-485 dated “12/03/09.” After the transition period, the Service Centers will return any incorrectly filed I-485 with instructions to send the application to the correct location.

USCIS said that applicants should not concurrently file an I-485 with an Immigrant Petition for Alien Worker (Form I-140) at a USCIS Lockbox facility. Applicants should refer to the I-140 filing instructions for information on how to file forms concurrently.

When filing the I-765 at one of the USCIS Lockbox facilities, the applicant may elect to receive an e-mail and/or text message notifying him or her that the application has been accepted. The applicant must complete an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of the application.

The revised form is available at http://www.uscis.gov/files/form/i-485.pdf. The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=29d841959f607210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. Instructions and related links are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3faf2c1a6855d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=dd346d26d17df110VgnVCM1000004718190aRCRD.

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3. Kerry, Lugar Introduce Immigrant Entrepreneur Bill

Sens. John Kerry (D-Mass.) and Richard Lugar (R-Ind.), the chairman and ranking member of the Senate Foreign Relations Committee, introduced legislation on February 24, 2010, to help immigrant entrepreneurs secure visas to the United States.

The “StartUp Visa Act of 2010” would allow an immigrant entrepreneur to receive a two-year visa under a new EB-6 category, drawing from existing EB-5 visas, if he or she can show that a qualified U.S. investor is willing to dedicate a minimum of $250,000 to the immigrant’s startup venture. After proving that he or she has secured initial investment capital and if, after two years, the immigrant entrepreneur can show that he or she has generated at least five full-time jobs in the U.S., attracted $1 million in additional investment capital, or achieved $1 million in revenue, he or she would receive permanent resident status.

Sen. Kerry noted, “Everywhere Dick Lugar and I travel for the Foreign Relations Committee, we see firsthand the entrepreneurial spirit driving the economies of our competitors.” Sen. Lugar said the U.S. “should channel the power of innovative thinkers from around the world and American investors towards creating jobs and encouraging economic growth and future prosperity.”

More than 160 U.S. venture capitalists have endorsed the senators’ proposal. A press release announcing the bill’s introduction is available at http://lugar.senate.gov/press/record.cfm?id=322460.

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4. ETA Announces 2010 Adverse Effect Wage Rates and Maximum Meal and Travel Charges for H-2A Agricultural Worker Employers

The Department of Labor’s Employment and Training Administration (ETA) has announced the new 2010 Adverse Effect Wage Rates (AEWRs) and the 2010 maximum allowable meal and travel subsistence charges applicable to employers seeking to employ H-2A nonimmigrant workers to perform agricultural labor in the United States on a temporary or seasonal basis. The AEWR serves as the floor for the agricultural wage rates under the H-2A program.

The ETA noted that the H-2A AEWR is based on USDA data compiled through its Farm Labor Survey (FLS) Reports. The changes take effect March 15, 2010.

The ETA’s announcement, which includes a state-by-state table of AEWRs for 2010, is available at http://edocket.access.gpo.gov/2010/pdf/2010-3078.pdf.

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5. ICE Updates List of SEVP-Approved Schools

U.S. Immigration and Customs Enforcement has released the latest updated list of Student and Exchange Visitor Program approved schools. The list is available at http://www.ice.gov/doclib/sevis/pdf/ApprovedSchools.pdf.

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6. ABIL GLOBAL: News from Australia

Australia. The Australian government has announced it is reforming the permanent skilled migration program to ensure that it is more responsive to the needs of industry and employers and better addresses the nation’s future skill needs.

The reforms will deliver a demand- rather than supply-driven skilled migration program that meets the needs of the economy in sectors and regions where there are shortages of highly skilled workers, such as healthcare, engineering, and mining. The major reforms to the skilled migration program include:

1. 20,000 would-be migrants will have their applications cancelled and receive a refund

All offshore General Skilled Migration applications filed before September 1, 2007, will have their applications withdrawn. These are people who applied overseas under easier standards, including less rigorous English language skill and work experience requirements. An estimated 20,000 people fall into this category.

The Department of Immigration and Citizenship (DIAC) will refund their visa application charges at an estimated cost of A$14million.

2. The list of occupations in demand will be tightened so that only highly skilled migrants will be eligible to apply for independent skilled migration visas

The wide-ranging Migration Occupations in Demand List (MODL) dating from September 2009 will be revoked immediately. The list is outdated and contains 106 occupations, many of which are less-skilled and no longer in demand.

A new and more targeted Skilled Occupations List (SOL) will be developed by an independent body, Skills Australia, and reviewed annually. It will be introduced mid-year and will focus on high-value professions and trades.

The Critical Skills List introduced at the beginning of 2009, which identified occupations in critical demand at the height of the global financial crisis, will also be phased out.

3. The points test used to assess migrants will be reviewed to ensure that it selects the best and brightest

Potential migrants gain points based on their qualifications, skills and experience, and proficiency in English. The current points test puts an overseas student with a short-term vocational qualification gained in Australia ahead of a Harvard-educated environmental scientist.

A review of the points test used to assess General Skilled Migration applicants will consider issues including whether some occupations should warrant more points than others, whether sufficient points are awarded for work experience and excellence in English, and whether there should be points for qualifications obtained from overseas universities.

The review will be reported to the government later this year.

4. Certain occupations may be capped to ensure that skill needs are met across the board

Amendments to the Migration Act will be introduced this year to give the Minister the power to set the maximum number of visas that may be granted to applicants in any one occupation. This will ensure that the Skilled Migration Program is not dominated by a handful of occupations.

5. Development of state and territory-specific migration plans

Individual state and territory migration plans will be developed so they can prioritize skilled migrants of their own choosing. This recognizes that each state and territory has different skill requirements. For example, Western Australia may have a shortage of mining engineers, while Victoria may need more architects. Under the new priority processing arrangements, migrants nominated by a state and territory government under their State Migration Plan will be processed ahead of applications for independent skilled migration.

Senator Chris Evans, the Minister for Immigration and Citizenship, has said the new arrangements will give first priority to skilled migrants who have a job to go to with an Australian employer. For those who do not have an Australian employer willing to sponsor them, the bar is being raised.

The government has acknowledged that the changes will affect some overseas students currently in Australia intending to apply for permanent residence. International students who hold a vocational, higher education or postgraduate student visa will still be able to apply for a permanent visa if their occupation is on the new SOL. If their occupation is not on the new SOL, they will have until December 31, 2012, to apply for a temporary Skilled Graduate 485 visa on completion of their studies, which will enable them to spend up to 18 months in Australia to acquire work experience and seek sponsorship from an employer.

The changes will not affect international students coming to Australia to gain a legitimate qualification and then return home.

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7. ABIL GLOBAL: News from Mexico

Mexico. On January 29, 2010, Mexico’s National Migration Institute published its Manual of Criteria and Migration Procedures (“Manual de Criterios y Trámites Migratorios del Instituto Nacional de Migración” or “Manual”). The Manual will be enforced as of May 1, 2010, throughout the 32 delegations of the National Migration Institute across the country.

The intention of the National Migration Institute is to clarify, streamline, and simplify processing requirements for each immigration category. Applications currently being processed and those filed before May 1, 2010, will be analyzed and processed based on current policies, practices, and procedures.

Some of the most relevant aspects of the Manual include:

• All migratory forms for tourists, business visitors, and technical visitors with lucrative activities, who intend to stay in Mexico for up to 180 days, will be replaced by a single “FMM” (Forma Migratoria Múltiple) form. The FMM will serve as evidence of the foreign national’s immigration status while in Mexico;
• The business visitor criteria are clearly defined. The new FMM form has an option for choosing the purpose of the visit as business (negocios), for which once the foreign national enters Mexico, the immigration officer will grant a 180-day stay.
• There are three options that the immigration officer might mark that will grant the foreign national 180 days: (a) Business (Visitante Persona de Negocios), (b) Visitor with Lucrative Activities (Visitante con Actividades Lucrativas), and (c) Visitor with Non-Lucrative Activities (Visitante con Actividades No Lucrativas). Any of these allow the foreign national to visit Mexico for business, either for working purposes or only for meetings.
• If the purpose of the business visit will extend the stay beyond 180 days, the foreign national will have to file for a change of immigration status to obtain the corresponding FM3.
• The ABTC (Asia-Pacific Economic Cooperation business travel card) criteria are clearly defined.
• In the following weeks, the National Migration Institute will publish the formats of the new migration cards that will replace the FM2 and FM3 booklets. Changes of activity, domicile, marital status, and similar information will no longer have to be annotated on the migratory document, thereby allowing a foreign national to travel in and out of Mexico while a change of status/conditions application is in process without having to request an exit and re-entry permit.

Consular posts will no longer issue FM2 or FM3 booklets. Instead, the consular post will place a visa sticker on the foreign national’s passport, upon receipt of the petition’s approval from the National Migration Institute. The sticker will allow entry into Mexico within 365 days of issuance. Upon entry, the foreign national must obtain the new FM2 or FM3 migration card within 30 days.

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8. ABIL GLOBAL: News from Canada

Canada. Canada welcomes approximately 250,000 new immigrants each year, which represents the highest per capita immigration in the world.The majority of those who immigrate to Canada apply to do so under Canada’s Federal Skilled Worker Class Program or under one of the Provincial Nominee Programs for those chosen/selected by one of Canada’s provinces or territories.

Canada’s Federal Skilled Worker Class Program is a points-based system. Points are awarded for education, language abilities (English and French), work experience, age, arranged employment, and adaptability.

Until 2008, any applicant who was awarded the minimum required 67 points would have been accepted as long as they and their family members had no significant medical, criminal, or security problems. Since 2008, Canada has imposed an additional requirement of having at least one year of full-time work experience in one of 38 occupations (financial managers, computer and information systems managers, accountants, physicians, and others) for those not already working in Canada or those who do not have an “arranged employment offer with a Canadian employer.”

Other options to consider for those interested in Canadian permanent residence who are not on Canada’s Federal Skilled Worker Class Program “38 occupations list” are the province of Quebec’s Skilled Worker Class Program and the province of Alberta’s U.S. Visa Holder Category Program.

Quebec’s Skilled Worker Class Program does not have a restrictive occupations list. Fifty-five points (for a single person) and 63 points for a married person are the minimum required points to be accepted for Canadian permanent resident status under the Quebec program, as of the most recent legislative changes of October 14, 2009. Points are awarded by Quebec (which accepts approximately 55,000 immigrants per year) principally for education, work experience, age, language abilities (oral French and oral English), visits to Quebec, family in Quebec, children’s and spouse’s educations, age, and oral French abilities. If a foreign national has some oral French abilities, or can readily acquire them, the Quebec Skilled Worker Class Program should be considered.

Alberta’s U.S. Visa Holder Category Program requires the foreign national to:

1. Be currently working in the United States with valid H-1B, H-1B1, H-1C or E3 status;

2. Have a minimum of one year of work experience in the U.S. in one of the qualifying visa categories; and

3. Be on the Alberta Occupations Under Pressure list of 72 occupations.

Canada welcomes applicants and their spouses who are in common-law or same-sex relationships.

Canada may be an option for those in the U.S. or elsewhere with precarious or soon expiring status.

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9. New Publications and Items of Interest

E-Verify unauthorized worker detection rate. Westat has released an evaluation of the E-Verify program, which finds that “since the inception of E-Verify it has been clear that many unauthorized workers obtain employment by committing identity fraud that cannot be detected by E-Verify.” The report puts E-Verify’s inaccuracy rate for detecting unauthorized workers at approximately 54 percent.

The report is available at http://www.uscis.gov/USCIS/E-Verify/E-Verify/Final%20E-Verify%20Report%2012-16-09_2.pdf. USCIS’s synopsis of the key findings and program implications is available at http://www.uscis.gov/USCIS/Native%20Docs/Westat%20Evaluation%20of%20the%20E-Verify%20Program.pdf.

High-skill immigration top blogger choice for economic recovery. The Kauffman Foundation has released the results of a survey of leading economics bloggers showing, among other things, that 63 percent support an increase in high-skill immigration to speed economic recovery. The report is available at http://www.kauffman.org/uploadedFiles/econ_blogger_outlook_q1_2010.pdf.

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10. Recent News from ABIL Members

Cyrus Mehta’s (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm) new blog, “Halcyon Days in H-1B Visa Processing,” discusses a memo issued in January 2010 (Neufeld Memo) and its effect on H-1B workers, especially beneficiaries of an approved I-140 petition under the EB-2 category from India or China, or an EB-3 from any country (especially India), who must file many extensions of H-1B status while waiting endlessly for immigrant visa availability. The blog is available at http://cyrusmehta.blogspot.com/2010/02/halcyon-days-in-h-1b-visa-processing.html. The Neufeld Memo is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf.

Angelo Paparelli’s (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm) new blog, “Immigration Tsunami Washes Over Staffing and Consulting Firms,” also discusses the Neufeld Memo. The blog notes that not only does the memo negatively affect entrepreneurs who hold majority or greater stakes in start-up and emerging companies, it also damages important sectors of the U.S. economy. The blog is available at http://blogs.ilw.com/angelopaparelli/2010/02/my-entry.html.

Mr. Paparelli was quoted in the February 25, 2010, edition of the Los Angeles Daily Journal in comments about the newly introduced “StartUp Visa Act of 2010.” Mr. Paparelli said he liked the idea but expressed concerns that the program would be “plagued by some of the same problems we have seen with the EB-5 program.” For example, he noted, foreign investors complain that their applications are denied for unclear reasons and permanent residence is often delayed.

Robert Loughran (bio: http://www.abil.com/lawyers/lawyers-loughran.cfm) recently co-authored an article published in the February 22, 2010, edition of the Texas Lawyer. The article, “Know the Procedural Ins and Outs to Avoid Immigration Pitfalls,” advises on enforcement and deterrence efforts affecting employers, including a focus on terrorism and homeland security issues, along with site visits, audits, requests for additional evidence, and the interlinking of databases and information-sharing.

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11. Government Agency Links

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

USCIS Service Center processing times online: 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/frvi/bulletin/bulletin_1360.html

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Headlines:

1. USCIS Releases Tips on Filing I-140 Immigrant Petition for Alien Worker – USCIS released a Q&A on ways to ensure that an Immigrant Petition for Alien Worker will not be rejected.

2. USCIS Is Reissuing Advance Parole Documents To Correct Date – USCIS is reissuing Advance Parole documents because some were mailed to applicants with an incorrect issue date; all advance parole documents continue to be valid because the expiration dates remain accurate.

3. DHS Adds 11 Countries to Designated List for Participation in H-2A, H-2B Programs – DHS has designated 39 countries whose nationals are eligible to participate in the H-2A and H-2B nonimmigrant programs.

4. DOL Releases List of Important E-Mail Addresses – The e-mail addresses pertain to PERM system, labor condition application and prevailing wage, and H-2A/H-2B issues.

5. ICE Updates List of SEVP-Approved Schools – ICE released an updated list of schools approved under the Student and Exchange Visitor Program.

6. AAO Processing Times Released – The chart shows Administrative Appeals Office processing times by case type.

7. USCIS Issues Q&A on Filing Instructions for E-2 CNMI Investors – The E-2 CNMI investor rule has not been finalized, so USCIS is not yet accepting petitions.

8. ABIL Global: UK Identity Cards for Foreign Nationals – The credit card-sized ICFN is designed to be carried with the migrant at all times.

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

10. Recent News from ABIL Members – Recent News from ABIL Members

11. Government Agency Links – Government Agency Links

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Details:

1. USCIS Releases Tips on Filing I-140 Immigrant Petition for Alien Worker

On January 21, 2010, U.S. Citizenship and Immigration Services (USCIS) released a Q&A on ways to ensure that an Immigrant Petition for Alien Worker (Form I-140) will not be rejected. Some tips include:

• Use the most current edition of the form, although older editions may be accepted.
• Make sure you follow the instructions carefully regarding which location to file your I-140 petition.
• Select only one visa preference category in Part 2 of the I-140. (USCIS will reject the I-140 petition if Part 2 is left blank or if more than one visa preference category is selected in Part 2.)
• Respond to all questions and provide information in all of the “answer” and “check” boxes. Write “none” or “n/a” in an answer box if a question does not apply to you.
• Print or type information using black ink only. Do not “highlight” or “background shade” your entries.
• Make sure the petitioner signs the I-140.
• Include the correct fee specified in the form instructions. If you file the petition with other related applications for the beneficiary, attach the fee to the petition by paper clip or staple, and indicate the name of the applicant on the payment document (i.e., in the memo field).
• Submit one check per application. If more than one petition or application is filed using a single check, and any of the forms are found to be improperly filed, all forms will be rejected.
• Submit Form G-28, Notice of Entry of Appearance as Attorney or Representative, if applicable (with original signatures of both the representative and the applicant or petitioner).
• For petitions that are filed electronically, send the supporting documentation to the address identified in the directions for e-filing Do not submit any other paper-filed applications or petitions with the supporting documentation for the electronically filed I-140.

Other questions and answers include what to do if an incorrect visa category is selected in Part 2; what to do if the petitioner wants to request consideration of multiple visa categories on behalf of a worker; how to file an I-140 that requires a Department of Labor-approved labor certification; and how to organize the evidence with the I-140 petition.

The memo also includes tips for various types of I-140s, such as aliens of extraordinary ability; outstanding professors or researchers; multinational executives or managers; aliens of exceptional ability; members of the professions holding an advanced degree; and national interest waivers.

Among other things, the memo discusses how a successor employer can establish a successor-in-interest relationship with a predecessor employer in order to use that employer’s approved labor certification when filing an I-140 on behalf of the beneficiary named on the labor certification; and tips on “porting” to a different employer if a beneficiary’s I-140 is still pending.

The memo is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=cfe8745543256210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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2. USCIS Is Reissuing Advance Parole Documents To Correct Date

U.S. Citizenship and Immigration Services (USCIS) announced on January 27, 2010, that it is reissuing Advance Parole (Form I-512) documents because some documents were mailed to applicants with an incorrect issue date of January 5, 1990. All affected documents have been identified and USCIS will automatically reissue those documents.

USCIS said all advance parole documents continue to be valid because the expiration dates remain accurate. Therefore it is not necessary for applicants to contact USCIS regarding their pending applications unless their application is outside the normal processing time of 90 days.

Those who need to travel urgently and have received a document with an invalid issue date may travel using the incorrectly dated document, USCIS said. U.S. Customs & Border Protection (CBP) has been alerted, and travelers may be questioned about the issuance date. USCIS advises printing the notice to share with CBP if necessary. The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=95641a510c076210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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3. DHS Adds 11 Countries to Designated List for Participation in H-2A, H-2B Programs

The Department of Homeland Security (DHS) has designated 39 countries whose nationals are eligible to participate in the H-2A and H-2B nonimmigrant programs. DHS said that the 28 countries designated in its December 2008 notices continue to meet the standards and therefore should remain on the list. With the concurrence of the Department of State, DHS has added 11 countries to the list for the first time, including Croatia, Ecuador, Ethiopia, Ireland, Lithuania, the Netherlands, Nicaragua, Norway, Serbia, Slovakia, and Uruguay. The other 28 countries are Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Indonesia, Israel, Jamaica, Japan, Mexico, Moldova, New Zealand, Peru, Philippines, Poland, Romania, South Africa, South Korea, Turkey, Ukraine, and the United Kingdom.

The notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-960.pdf.

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4. DOL Releases List of Important E-Mail Addresses

The Department of Labor recently released a list of important e-mail addresses pertaining to the PERM system, labor condition applications and prevailing wages, and H-2A/H-2B issues. The list is available at http://www.aila.org/content/default.aspx?docid=27762.
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5. ICE Updates List of SEVP-Approved Schools

On January 20, 2010, U.S. Immigration and Customs Enforcement released an updated list of schools approved under the Student and Exchange Visitor Program. The list is available at http://www.ice.gov/doclib/sevis/pdf/ApprovedSchools.pdf.
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6. AAO Processing Times Released

The American Immigration Lawyers Association has released a chart showing Administrative Appeals Office (AAO) processing times by case type, as of January 4, 2010. The chart is available at http://www.aila.org/content/default.aspx?docid=31122.
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7. USCIS Issues Q&A on Filing Instructions for E-2 CNMI Investors

The Consolidated Natural Resources Act of 2008 (CNRA) extends certain provisions of U.S. immigration law to the Commonwealth of the Northern Mariana Islands (CNMI) for the first time. The transition period for this change began on November 28, 2009. Under the CNRA, U.S. Citizenship and Immigration Services (USCIS) is establishing an E-2 CNMI investor classification, to allow foreign nationals who were admitted as long-term investors under the CNMI immigration laws to remain in the CNMI through the transition period.

The E-2 CNMI investor rule has not been finalized, so USCIS is not yet accepting petitions. The program will be in effect only during the transition period, scheduled to expire on December 31, 2014. The E-2 CNMI investor classification and related visas will expire that day, although USCIS noted that the Department of Homeland Security may extend the transition period.

A related Q&A on filing instructions is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e2546f4affa66210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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8. ABIL Global: UK Identity Cards for Foreign Nationals

In November 2008, the United Kingdom (UK) Border Agency (UKBA) set out its plan to introduce a requirement for all non-British or European Economic Area (EEA) nationals applying for leave to enter or remain in the UK to register biometric data as part of their visa applications. An applicant’s biometric data and permission to enter or remain in the UK is recorded in an Identity Card for Foreign Nationals (ICFN), replacing the vignette sticker placed in the migrant’s passport as a certificate of permission to enter or remain in the UK.

All relevant applicants and their dependents must now attend an appointment in person to give facial and fingerprint information, which is encoded on a secure readable microchip embedded within the ICFN. The credit card-sized ICFN is designed to be carried with the migrant at all times, and presented with the migrant’s passport upon entry into, and exit from, the UK and without which the migrant may be refused entry. The information stored on the ICFN is designed to be scanned upon entry to the UK and by UKBA staff performing compliance visits, and is heralded as a key tool in the detection of forged travel and ID documents and ultimately a step closer to the UKBA’s goal of eliminating undocumented work in the UK.

ICFN scheme extended to skilled workers under Tier 2 of the Points Based System. The ICFN scheme initially applied only to those applying to remain in the UK under the student category and the spouse, unmarried partner, same-sex partner and civil partner category, which the UKBA asserts are the high-risk immigration routes for identity fraud and visa abuse. Between December 2009 and March 2009, the UKBA extended the requirement for an ICFN to include migrants applying to remain in the UK as students under Tier 4 of the Points Based System (PBS), and to non-PBS categories, including post-graduate doctors and dentists, academic visitors (extending beyond six months in total), domestic workers in private households, UK ancestry, and the sole representatives of overseas business categories.

On September 24, 2009, the UKBA announced that starting in January 2010, all foreign nationals applying for an extension of their immigration permission (leave to remain) as a skilled worker under Tier 2 and their dependents in the UK would require an ICFN as part of their application. On December 10, 2009, the UKBA announced that the requirement would be implemented from January 6, 2010. Employers therefore had less than one month over the holiday period to assist any employees in the UK with leave to remain as a work permit holder nearing expiration with the submission of an extension application prior to the implementation date. Any applications submitted on or after January 6, 2010, would require in-person biometrics appointments as part of the application process.

The UKBA has confirmed on its Web site that it intends to further extend ICFNs to all highly skilled migrant applications submitted in the UK under Tier 1 of the PBS later in 2010.

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9. New Publications and Items of Interest

Global Workforce Impact Survey. Western Union and The Economist have published the “Western Union Global Workforce Impact Survey.” The report notes that nearly one out of six people worldwide has migrated, representing a vast mobile workforce. This includes 740 million who are traveling within their own country, and 200 million who are moving across international borders.1 With more people on the move, the report says, international migration is increasingly recognized as central to economic vitality and global competitiveness. Varying immigration laws among countries often limit a company’s ability to hire the necessary talent, the report notes: “With an eye fixed on the future, businesses increasingly see open immigration policies as enabling them to expand quickly when the economy turns around.” The report calls for policymakers to address these business needs by developing flexible immigration policies that minimize the barriers to mobility and address concerns about the impact of foreign workers on domestic wages, working conditions, and opportunities. The survey of 501 senior executives was designed to provide new insight into business attitudes and practices toward cross-border workforce supplies. More than three out of four (76 percent) respondents believe that foreign workers have a positive impact on the economy.

The report is available at http://corporate.westernunion.com/global_migration.html.

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10. Recent News from ABIL Members

Charles Kuck (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm) was featured recently on CNN in an interview/commentary on letting Haitians stay in the U.S. via temporary protected status. The video is available at http://newsroom.blogs.cnn.com/2010/01/24/letting-haitians-stay-in-the-united-states/.
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11. Government Agency Links

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

USCIS Service Center processing times online: 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/frvi/bulletin/bulletin_1360.html

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