Headlines:

1. USCIS Issues Controversial Memo on Determining Employer-Employee Relationships for Adjudication of H-1B Petitions – The memo states that a lack of guidance clearly defining what constitutes a valid employer-employee relationship has raised problems.

2. SSA Fails To Verify 19 Percent of New Hires – The SSA also improperly E-Verified volunteers who should not have been screened under federal guidelines, and inappropriately screened some candidates in advance of hire.

3. DHS Grants TPS to Haitians Following Catastrophic Earthquake – The Obama administration announced that it is granting temporary protected status to Haitians who were in the U.S. as of January 12, 2010.

4. USCIS Announces Restructuring of Fraud Detection, Customer Service, Domestic Operations – USCIS has created or restructured several directorates.

5. USCIS Grants One-Time Accommodation for H-2A Sheepherders – USCIS will allow H-2A sheepherders more time to fully transition to the three-year limitation of stay requirements under the agency’s final rule.

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

7. Recent News from ABIL Members – Recent News from ABIL Members

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Details:

1. USCIS Issues Controversial Memo on Determining Employer-Employee Relationships for Adjudication of H-1B Petitions

Donald Neufeld, Associate Director for U.S. Citizenship and Immigration Services (USCIS) Operations, released a memorandum on January 8, 2010, that provides guidance concerning the requirement that an H-1B petitioner establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period.

The memo states that a lack of guidance clearly defining what constitutes a valid employer-employee relationship has “raised problems,” particularly with independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. Mr. Neufeld notes that the placement of a beneficiary/employee at a worksite that is not operated by the petitioner/employer (third-party placement), common in some industries, “generally makes it more difficult to assess whether the requisite employer-employee relationship exists and will continue to exist.

Among other things, petitioner control over the beneficiary must be established when the beneficiary is placed into another employer’s business and is expected to become a part of that business’s regular operations, the memo notes. “The requisite control may not exist in certain instances when the petitioner’s business is to provide its employees to fill vacancies in businesses that contract with the petitioner for personnel needs. Such placements are likely to require close review in order to determine if the required relationship exists,” the memo warns.

Further, the memo notes, USCIS must ensure that the employer is in compliance with Department of Labor regulations requiring that a petitioner file a labor condition application (LCA) specific to each location where the beneficiary will be working.

The memo includes a discussion of the “right to control” when, where, and how the beneficiary performs the job, which the memo distinguishes from “actual control.” The memo states that the employer-employee relationship hinges on the right to control the beneficiary, and outlines 11 factors USCIS will consider to make such determinations. The memo also provides examples of valid and invalid employer-employee relationships; exceptions; documentation to establish the employer-employee relationship; and requests for evidence.

The memo, which has stirred controversy (see, e.g., http://cyrusmehta.blogspot.com/2010/01/new-uscis-memo-on-employer-employee.html andhttp://www.nationofimmigrators.com/), is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3d015869c9326210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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2. SSA Fails To Verify 19 Percent of New Hires

In a recent 18-month period, the Social Security Administration (SSA) failed to verify the Social Security Numbers of 19 percent, or 1,767 of 9,311 new SSA employees, as required. In other cases examined by the SSA’s Office of the Inspector General, the SSA improperly E-Verified volunteers who should not have been screened under federal guidelines, and inappropriately screened some candidates in advance of hire.

SSA agreed with the Inspector General’s recommendations, including verifying the 1,767 workers and issuing guidance to remind staff to: (1) verify all new hires, (2) conduct verification queries within three business days after a new employee has reported for duty and both sections of the I-9 employment eligibility verification form have been completed, and (3) prohibit the verification of existing SSA employees, job candidates, and volunteers.

The Inspector General’s report is available at http://www.ssa.gov/oig/ADOBEPDF/A-03-09-29154.pdf.

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3. DHS Grants TPS to Haitians Following Catastrophic Earthquake

Following the catastrophic earthquake in Haiti last week, the Obama administration announced that it is granting temporary protected status (TPS) to Haitians who were in the U.S. as of January 12, 2010. The designation will allow eligible Haitian nationals in the U.S. to continue living and working in the country for the next 18 months. Secretary of Homeland Security Janet Napolitano noted that “[t]hose who attempt to travel to the United States after January 12, 2010, will not be eligible for TPS and will be repatriated.”

In a related field guidance memo issued on January 15, Secretary Napolitano said that U.S. Citizenship and Immigration Services “will implement procedures to adjudicate favorably, where possible, applications for change or extension of nonimmigrant status following the expiration of an applicant’s period of admission; grant an additional period of parole or advance parole in appropriate cases; and authorize ‘F’ nonimmigrant students’ requests for off-campus employment work authorization.” She said USCIS will also “expedite the processing of advance parole applications and relative petitions for minor children from affected areas,” and will “grant employment authorization where appropriate.”

The field guidance memo, which outlines actions a USCIS officer may take when an applicant is a Haitian national or a habitual resident of Haiti, is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/haiti-field-guidance.pdf. The announcement, along with information about USCIS’s Haiti relief effort, is available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=9cf75869c9326210VgnVCM100000082ca60aRCRD&vgnextchannel=9cf75869c9326210VgnVCM100000082ca60aRCRD. Details on TPS application and eligibility requirements for Haitians are available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=e54e60f64f336210VgnVCM100000082ca60aRCRD&vgnextchannel=e54e60f64f336210VgnVCM100000082ca60aRCRD. Department of State information about queries related to U.S. citizens in Haiti and related issues is available at http://travel.state.gov/travel/cis_pa_tw/pa/pa_haiti_info_number.html.

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4. USCIS Announces Restructuring of Fraud Detection, Customer Service, Domestic Operations

U.S. Citizenship and Immigration Services announced on January 11, 2010, that it has realigned its organizational structure “to achieve greater efficiency and to more ably accomplish our mission.” The realignment reflects the prioritization of certain critical agency responsibilities, USCIS said. The three most significant changes are:

• The creation of a Fraud Detection and National Security Directorate.
• The creation of a new Customer Service Directorate.
• The division of the existing Domestic Operations Directorate into two separate directorates: Service Center Operations and Field Operations.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=687e62cb6ee16210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A USCIS organizational chart is available at http://www.uscis.gov/USCIS/News/Images/USCISOrgChart.JPG.

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5. USCIS Grants One-Time Accommodation for H-2A Sheepherders

U.S. Citizenship and Immigration Services (USCIS) announced that it will allow H-2A sheepherders more time to fully transition to the three-year limitation of stay requirements under the agency’s final rule that became effective on January 17, 2009. USCIS said it is making the one-time accommodation in deference to the industry’s previous exemption from the three-year limitation. This exemption does not impact other H-2A categories. The time spent as an H-2A worker performing labor or services as a sheepherder before the effective date of the final rule will not be counted toward the three-year maximum period of stay, USCIS said. Instead, the agency is “starting the clock” on January 17, 2009, for sheepherders who were lawfully present in the U.S. in H-2A classification on that date.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1c9a1543455e5210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. New Publications and Items of Interest

Responding to a new era of global mobility. NAFSA: Association of International Educators has published A Visa and Immigration Policy for the Brain-Circulation Era: Adjusting to What Happened in the World While We Were Making Other Plans. The report says that it’s time for the United States to adopt an approach that embraces the opportunities of a new era in global mobility and supports its economic competitiveness and foreign policy goals. NAFSA urges a comprehensive set of policy actions that will enhance the U.S.’s ability to benefit from the contributions of foreign students and foreign talent, and makes recommendations in the areas of visa reform, including revising the policy on interviews for visa applicants, expediting reviews for low-risk travelers, and reforming the security clearance process for visiting scientists; comprehensive immigration reform, including reforming employment-based immigration, attracting international students, and improving management of the Department of Homeland Security; and identity documents and document security, including revisiting REAL ID. The report is available at http://www.nafsa.org/PressRoom/PressRelease.aspx?id=17421.
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7. Recent News from ABIL Members

The January-February 2010 issue of Business Law Today, published by the American Bar Association, features articles written by several members of the Alliance of Business Immigration Lawyers. The issue is posted at http://www.abanet.org/buslaw/blt/. The articles include:

• Top Five Business Immigration Law Issues, by H. Ronald Klasko (bio: http://www.abil.com/lawyers/lawyers-klasko.cfm), available at http://www.abanet.org/buslaw/blt/2010-01-02/klasko.shtml
• Creating a Global Workforce, co-authored by Bryan Funai (bio: http://www.abil.com/lawyers/lawyers-funai.cfm), available at http://www.abanet.org/buslaw/blt/2010-01-02/funai-contreras.shtml
• Bothersome Immigration Buzz Spells Trouble for M&A Deals, by Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm), available at http://www.abanet.org/buslaw/blt/2010-01-02/paparelli.shtml

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in a January 10, 2010, article in the Washington Post on immigrant investors. Noting that the number of EB-5 visas being granted falls well short of the maximum 10,000 allowed each year, Mr. Yale-Loehr commented, “There’s a lot more that we could be doing to promote the EB-5 program so that it can achieve its true potential in this economic recession.”

Cyrus Mehta’s new blog, “New USCIS Memo on Employer-Employee Relationship for H-1B Petitions: Will It Keep Certain Workers Out?,” argues that a new January 8, 2010, memo from U.S. Citizenship and Immigration Services (USCIS), available at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf, “guts the ability of IT consulting firms to file H-1B visas,” and represents “a thinly veiled attempt to kill a successful Indian business model that American businesses have so readily embraced.” He says it is no surprise that “the outrageous singling out of Indians since the New Year waiting in the line at Newark and other airports by CBP [U.S. Customs and Border Protection] officials is the result of the Neufeld Memo that may have filtered through CBP officialdom but not the public until January 13, 2010.” The blog is available at http://cyrusmehta.blogspot.com/2010/01/new-uscis-memo-on-employer-employee.html. Mr. Mehta also released a blog, “Expedited Removal of H-1B Workers at Newark,” which discusses H-1B workers from India employed by IT consulting firms being subject to expedited removal orders at Newark airport in New Jersey. That blog is available at http://cyrusmehta.blogspot.com/2010/01/expedited-removal-of-h-1b-workers-at.html.

Mr. Paparelli’s new blog, “Please Tweet Me an H-1B,” comments on the same January 8, 2010, memo from USCIS. The blog notes that in the past, the immigration service would publish regulations with an opportunity to comment, and an explanation of the agency’s thinking in the supplementary information. Mr. Paparelli calls the new memo on the Web, along with an accompanying FAQ, a “mush” and a “porridge of new and indigestible pronouncements.” Mr. Paparelli says “the OMB of old would never have allowed such mush to splatter the pages of the Federal Register.” The blog is available at http://www.nationofimmigrators.com/.

Charles Kuck’s (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm) latest blog, “It Is Time for TPS Designation for Haitians,” notes that in addition to the recent 7.0 earthquake, Haitians endured political upheaval, riots over skyrocketing food prices, and four major storms in 2008 from which they have yet to recover. “Allow the nationals of that country currently in the United States to help that country recovery by allowing them to come forward and secure a work permission in the United States,” Mr. Kuck argues. (Secretary of Homeland Security Janet Napolitano subsequently announced that TPS has been granted to Haitians present in the U.S. as of January 12, 2010.) Mr. Kuck also recently published a blog on comprehensive immigration reform, “Immigration and the Economy – We Need CIR Now!,” which discusses reports showing that removal of the 12 million undocumented people in the U.S. would be an economic disaster, causing a loss to the U.S. economy of over $2 trillion over the next 10 years. The blog postings are available at http://www.immigration.net/Blog/.

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Headlines:

1. H-1B Cap Count Near Limit; File Now or Wait Until April – The pace of H-1B filings has increased significantly in recent weeks.

2. Self-Check Verification In the Works, USCIS Head Says; ‘Verification Initiative for Business Enterprise’ Discussed – The recent pace of filings suggests that H-1B numbers may be exhausted for this fiscal year very soon.

3. Visa Bulletin Issues Projections for FY 2010 Cut-Off Dates – The Visa Bulletin for January 2010 includes projections for cut-off dates that will be reached by the end of fiscal year 2010.

4. State Dept. To Deploy Web-Based Nonimmigrant Visa Application Worldwide – The DS-160 will be expanded in phases, with the goal of worldwide usage for all nonimmigrant visa applications, except K visas, by April 30, 2010.

5. CBP Launches H-2 Temporary Worker Exit Program in Arizona – Only H-2A and B temporary workers who enter the U.S. on a new work authorization will be required to register their final departure from the U.S. when their authorized period of stay expires.

6. Northern Marianas Update: Transitional Worker Injunction, Parole Status, P.O. Box Recommendation – USCIS announced, among other things, that it will grant parole status to eligible foreign nationals from certain groups in the CNMI affected by the transition.

7. CBP Announces ‘FAST’ Commercial Frequent Traveler Program Change – All old FAST cards will be deactivated on January 5, 2010.

8. ETA Announces Change in Address for Certain Temporary Labor Certification Filings – The Chicago National Processing Center has moved.

9. Publications and Items of Interest – 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. H-1B Cap Count Near Limit; File Now or Wait Until April

U.S. Citizenship and Immigration Services reported that as of December 10, 2009, approximately 62,500 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for workers with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS said it will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions has been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

The Alliance of Business Immigration Lawyers (ABIL) notes that the pace of H-1B filings has increased significantly in recent weeks, and predicts that the H-1B cap could be reached by the end of this year. Department of Labor delays in processing labor condition applications (LCAs) reportedly are complicating matters; the most prevalent problem in the new iCERT online system is the denial of LCAs when the Department cannot verify the employer’s Federal Employment Identification Number (FEIN). Once the employer locates the necessary documentation and sends it to the Department, it has been taking up to 10 additional business days to resolve the problem, according to reports. After it has been resolved, the employer can resubmit the LCA through iCERT; the resubmission is once again subject to the seven-day processing time.

USCIS recently issued an advisory noting that it will accept uncertified LCAs seven days after they were filed, even if they got denied due to lack of FEIN verification.

Companies that wish to sponsor an H-1B cap-subject employee for this fiscal year should contact their ABIL member immediately. Once the H-1B cap has been met, the earliest an employer can file an H-1B petition will be April 1, 2010, with an employment start date of October 1, 2010.

For more details on the H-1B count, see http://www.uscis.gov/h-1b_count. For information on the temporary acceptance of H-1B petitions without Department-certified LCAs, see http://www.uscis.gov/USCIS/Laws/Memoranda/2009/h-ib-petitions-temporary-acceptance.pdf. For a Q&A on the same topic, see http://www.foreignlaborcert.doleta.gov/pdf/FAQ_PERM_Appeals_Filing_Final_12012009.pdf.

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2. Self-Check Verification In the Works, USCIS Head Says; ‘Verification Initiative for Business Enterprise’ Discussed

U.S. Citizenship and Immigration Services Director Alejandro Mayorkas announced at a press conference on December 10, 2009, that the agency plans to incorporate a self-check option in the E-Verify system some time in 2010. The capability is intended to allow workers to verify their employment authorization before applying for a job. Eight days are allowed currently to address a “tentative nonconfirmation”; Mr. Mayorkas said the new capability will give workers time to correct any errors before they apply for a job, without having to meet an eight-day deadline.

Mr. Mayorkas also noted that the Verification Initiative for Business Enterprise (VIBE) Web-based program is expected to be launched in spring 2010. In a letter sent to Sen. Charles Grassley on November 10, 2009, outlining the VIBE program and discussing other issues, Mr. Mayorkas said that VIBE will use “commercially available data from [Dunn and Bradstreet] to validate and verify information submitted by organizations that petition to employ alien worker.” Mr. Mayorkas said his agency believes VIBE “will provide adjudicators with a tool to accurately verify the financial viability and current level of business operations for employment-based petitions.

Others aren’t so sure that this program gives off such a good vibe. For a commentary, see http://blogs.ilw.com/angelopaparelli/2009/12/bad-bad-bad-immigration-vibrations-from-uscis.html

Mr. Mayorkas’ letter to Sen. Grassley is available at http://www.nationofimmigrators.com/wp-content/uploads/2009/12/Mayorkas%20letter%20to%20Grassley%20re%20H-1B%20visa%20fraud.pdf.

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3. Visa Bulletin Issues Projections for FY 2010 Cut-Off Dates

The Department of State’s Visa Bulletin for January 2010 includes the following projections for cut-off dates that will be reached by the end of fiscal year 2010. The Department cautioned that the date ranges are only estimates and are subject to fluctuations in demand during the coming months. It is possible that some annual limits could be reached before the end of the fiscal year, the Department said:

Employment First:

It is unlikely that there will be any cut-off dates in the employment first preference categories, which are now Current.

Employment Second:

China: July through October 2005
India: February through early March 2005
(If Section 202(a)(5) were to apply:
China and India: October through December 2005)

Employment Third:

Worldwide: April through August 2005
China: June through September 2003
India: January through February 2002
Mexico: January through June 2004
Philippines: April through August 2005

Additional details, including an explanation of INA section 202(a)(5) and other aspects of how cut-off decisions are made, are available in the Visa Bulletin for January 2010 at http://travel.state.gov/visa/frvi/bulletin/bulletin_4597.html.

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4. State Dept. To Deploy Web-Based Nonimmigrant Visa Application Worldwide

The Department of State’s Bureau of Consular Affairs recently announced that it plans to deploy a fully Web-based Form DS-160 (Nonimmigrant Visa Application) worldwide. The Visa Office said that the DS-160, the first component or module of the Consular Electronic Application Center (CEAC), “has been used with great success at 24 posts so far” and will be expanded in phases, with the goal of worldwide usage for all nonimmigrant visa applications, except K visas, by April 30, 2010. TheDS-160 will replace the Electronic Visa Application Form (EVAF).

The Visa Office noted that although the target completion date is still five months away, it faces a technical challenge in meeting this deployment goal, involving development and testing of new foreign language translations. Sixty-four hours of development time are required to deploy a new translation of the DS-160 at a cost of $8,000 per language, which the Visa Office noted limits how quickly the DS-160 can be deployed to posts where English is not widely spoken. On October 29, Consular Affairs approved translation of 22 languages. The Visa Office said it will monitor this process carefully and will request additional funding and resources if necessary to avoid implementation delays.

The Visa Office strongly encouraged consular posts to consider developing an outreach plan to advise applicants and other stakeholders of the CEAC implementation. Posts listed in the Visa Office’s cable have been identified as priority posts to implement the DS-160 by March 1, 2010. The cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4601.html. Additional information on the DS-160, including frequently asked questions, is available at http://www.travel.state.gov/visa/frvi/forms/forms_1342.html.

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5. CBP Launches H-2 Temporary Worker Exit Program in Arizona

U.S. Customs and Border Protection (CBP) launched a pilot program on December 8, 2009, for exiting H-2A and B temporary workers. The program will be tested at San Luis and Douglas land ports of entry in Arizona and the pilot phase is expected to last about a year. H-2A (agricultural) and H-2B (nonagricultural) visas are issued to temporary seasonal workers.

CBP’s goal is to ensure that temporary workers comply with the requirement to leave the U.S. when their work authorization expires. To verify their final departure, H-2A and B workers will be required to scan their visas and their fingerprints and return their I-94 Arrival-Departure Record at an exit kiosk located at the port of departure. The kiosk will provide instructions in English and Spanish. Under the pilot program, travelers admitted under the H-2A and B classifications at San Luis or Douglas ports of entry must depart through one of the two designated ports.

CBP noted that frequent border crossers or commuters do not need to register every departure, but only their final departure from the U.S. Only H-2A and B temporary workers who enter the U.S. on a new work authorization will be required to register their final departure from the U.S. when their authorized period of stay expires.

More than 205,000 H-2 temporary workers entered the U.S. in fiscal year 2009, CBP said. Of those, more than 147,000 were H-2A workers and more than 58,000 were H-2B workers.

CBP’s announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/12102009.xml.

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6. Northern Marianas Update: Transitional Worker Injunction, Parole Status, P.O. Box Recommendation

In response to a preliminary injunction by the U.S. District Court for the District of Columbia, U.S. Citizenship and Immigration Services (USCIS) is not accepting any petitions for a Commonwealth of the Northern Mariana Islands (CNMI) transitional worker (CW-1) until further notice. The agency said that the injunction does not affect any aspect of the application of federal immigration laws to the CNMI other than the transitional worker nonimmigrant category. USCIS said it has decided to provide an additional opportunity for the public to comment on its proposed transitional worker classification provisions as set forth in an interim rule. USCIS reopened the public comment period for an additional 30 days, extended the original comment period until January 8, 2010, and said it will consider comments received throughout the entirety of the public comment period in development of its final transitional worker classification rule.

USCIS also announced that it will grant parole status to eligible foreign nationals from certain groups in the CNMI affected by the transition. The groups include CNMI permanent residents, their immediate relatives, and the immediate relatives of citizens of the Compacts of Freely Associated States (the Republic of Palau, the Federated States of Micronesia, and the Republic of the Marshall Islands).

USCIS also advised anyone living in the CNMI who submits an immigration application to list their P.O. Box where the form asks for a street or physical address. If an applicant has already filed an application using a street name, USCIS advises completing a change of address. The agency noted that applications that do not use post office boxes are being returned to the USCIS office.

The interim rule update is available at http://edocket.access.gpo.gov/2009/pdf/E9-29331.pdf. The USCIS announcement about the injunction is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b139f8b9f8555210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The USCIS announcement about post office boxes is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5a3cbd3241b65210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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7. CBP Announces ‘FAST’ Commercial Frequent Traveler Program Change

U.S. Customs and Border Protection announced on December 4, 2009, that members of its Free and Secure Trade (FAST) program will not be able to use their old FAST cards in passenger lanes, effective January 5, 2010. CBP has been issuing new cards with enhanced security features for current FAST members since March 16. All members are asked to activate their new cards using a global online enrollment system and to destroy their old ones. Anyone who has not received their new card should go immediately to their local enrollment center to pick up a new card or have one issued. CBP says it will take about two weeks to receive a new card. All old FAST cards will be deactivated on January 5, 2010. CBP said that officers “will allow a one-time entry into the U.S. to travelers with old FAST cards, but will seize the card from the traveler and refer the member to the Enrollment Center.”

The FAST program has more than 92,000 members, and is available to commercial drivers crossing both the northern and southern borders.

The CBP announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/12042009_2.xml.

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8. ETA Announces Change in Address for Certain Temporary Labor Certification Filings

The Chicago National Processing Center (NPC) is responsible for adjudicating all employer applications for temporary labor certification under the H-1B, H-1B1, E-3, H-2A, H-2B, H-1C, and D-1 programs. The NPC address has changed as of December 4, 2009. For three weeks after that date, the Chicago NPC will receive via courier all written correspondence submitted to its former address. “This is to ensure a smooth transition and allow all interested parties to commence using the new address,” the Department of Labor’s Employment and Training Administration (ETA) said in a notice announcing the change. On January 6, 2010, the courier will cease to operate and all submissions to the former address of the Chicago NPC will be returned to the sender.

The new address is:

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
536 South Clark Street
Chicago, IL  60605-1509
telephone: (312) 886-8000; facsimile: (312) 353-3352.

The following address is to be used for all invoices/fees submitted in connection with the H-2A and H-1C programs:

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
P.O. Box A3804
Chicago, IL  60690-A3804.

The ETA’s notice is available at http://edocket.access.gpo.gov/2009/pdf/E9-28954.pdf.

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9. Publications and Items of Interest

PERM appeals best practices. The Department of Labor released a “Frequently Asked Questions” document on December 1, 2009, discussing best practices for filing PERM appeals. See http://www.foreignlaborcert.doleta.gov/pdf/FAQ_PERM_Appeals_Filing_Final_12012009.pdf.
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10. Recent News from ABIL Members

Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) spoke at a recent “off-the-record” roundtable at the Center for American Progress (CAP). CAP’s head of immigration issues, Marshall Fitz, wrote a paper suggesting ways to improve high-skilled immigration that was used as a backgrounder for the roundtable. The paper, “Prosperous Immigrants, Prosperous Americans: How to Welcome the World’s Best Educated, Boost Economic Growth, and Create Jobs,” was released in December 2009 and is available at http://www.americanprogress.org/issues/2009/12/pdf/highskilled_immigrants.pdf.

Recent postings on Charles Kuck’s (bio: http://www.abil.com/lawyers/lawyers-kuck.cfm) blog include an article about the booming fake identification business in North Carolina; commentary on Pat Buchanan’s recent editorial in the San Jose Mercury News recommending “halting immigration” as an “instant stimulus package”; an article on the new immigration reform bill; and “The Best (and Worst) of 2009.” The blog is available at http://www.immigration.net/Blog/?m=200912.

John Nahazjer (bio: http://www.abil.com/lawyers/lawyers-nahajzer.cfm) gave a presentation on I-9 audits, E-Verify issues, and Social Security No-Match Letters for Business and Legal Resources (BLR) on December 4, 2009.

Bernard P. Wolfsdorf (bio: http://www.abil.com/lawyers/lawyers-wolfsdorf.cfm) recently posted “Immigration and American Innovation” to the American Immigration Lawyers Association’s Leadership Blog. Among other things, his posting notes that the U.S. hasn’t changed the numerical limitation on the admission of scientists in 20 years. “America needs to wake up,” he warns. The blog is available at http://ailaleadership.blogspot.com/2009/12/immigration-and-american-innovation.html.

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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 Reminds Applicants for Travel Documents To Apply Early – USCIS issued a fact sheet outlining eligibility requirements, the consequences of traveling without advance parole for affected persons, and the possible consequences of using advance parole after being unlawfully present in the U.S. or to return to the country of claimed persecution.

2. State Dept. Cautions Waiver Travelers To Disclose Visa Delays as Denials – Certain travelers are advised to indicate that they have been refused a visa under INA § 221(g) when completing their ESTA registrations.

3. USCIS Issues Guidance on I-140 Issues and Labor Certifications – The guidance notes, among other things, that government agencies have multiple immigration avenues for offers of permanent employment to professors or researchers.

4. USCIS Temporarily Accepts Incorrectly Denied LCAs for Certain H-1B Cases – USCIS announced that it would temporarily accept certain H-1B petitions filed without LCAs that have been certified by the DOL for a 120-day period, through March 4, 2010.

5. Labor Dept. Announces Expiration of H-1C Nursing Program – The H-1C program will sunset on December 21, 2009.

6. DOL Extends H-2A Transition Period – The application filing procedures under the extended transition period apply to all employers with dates of need before June 1, 2010.

7. USCIS Releases Fact Sheet on ‘Public Charge’ Determinations – The agency noted, among other things, that receiving public benefits does not automatically make an individual a public charge.

8. December Visa Bulletin Notes Reinstatement of Certain Religious Workers and Investor Pilot Program Categories –  The two categories have been extended through September 30, 2012.

9. Recent News from ABIL Members – Recent News from ABIL Members

10. Government Agency Links – Government Agency Links

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Details:

1. USCIS Reminds Applicants for Travel Documents To Apply Early

U.S. Citizenship and Immigration Services has reminded applicants for advance parole (permission to reenter the U.S. after traveling abroad) to apply early. USCIS said that travelers must obtain advance parole if they have been granted temporary protected status or have a pending application for (1) adjustment of status to lawful permanent residence; (2) relief under § 203 of the Nicaraguan Adjustment and Central American Relief Act; (3) asylum; or (4) legalization.

The agency issued a fact sheet outlining eligibility requirements, the consequences of traveling without advance parole for affected persons, and the possible consequences of using advance parole after being unlawfully present in the U.S. or to return to the country of claimed persecution.

The fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/AdvParoleFact%20ShtOct2009Final.pdf.

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2. State Dept. Cautions Waiver Travelers To Disclose Visa Delays as Denials

The Department of State has taken the position that those who have applied for a visa that cannot be granted due to a need for further security clearances, or additional documents or information, have been effectively “denied” a visa and must disclose this when completing their ESTA (Electronic System for Travel Authorization) application should they later wish to use the Visa Waiver Program as a visitor while their visa application remains pending. The Alliance of Business Immigration Lawyers warns that this situation can be confusing because the applicants may have been told simply that their applications require further processing rather than that they have been denied, but then they may be refused admission later for misrepresentation if they do not disclose the denial. Such travelers are advised to indicate that they have been refused a visa under INA § 221(g) when completing their ESTA registrations. Those who have completed an ESTA registration without revealing the denial are advised to re-register and indicate the specifics. This is a fluid situation, and the Department’s position is controversial. Consult your immigration attorney for more specific guidance in particular cases.

Information on the ESTA system is available at https://esta.cbp.dhs.gov/esta/esta.html?_flowExecutionKey=_c2E5A4D95-E27C-3FCA-B3E1-C3866F0FF391_k8329F60B-FD9E-61A1-1777-C748F6B4CB86. The new Department of State position was made in consultation with U.S. Customs and Border Protection (CBP), which announced it to the American Immigration Lawyers Association’s (AILA) CBP liaison committee. A public announcement by CBP is awaited.

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3. USCIS Issues Guidance on I-140 Issues and Labor Certifications

U.S. Citizenship and Immigration Services recently provided guidance on (1) determinations of whether a particular employer falls within the definition of INA § 203(b)(1)(B), thus allowing USCIS to grant, if otherwise approvable, a first preference (EB-1) green card petition filed by that employer on behalf of an outstanding professor or researcher in connection with an offer of employment; (2) procedures for determining whether a labor certification has been filed with a Form I-140 (Immigrant Petition for Alien Worker) during its validity period; and (3) various issues relating to labor certification applications approved by the Department of Labor and filed in support of I-140 petitions.

Among other things, the guidance clarifies that government agencies do not qualify as “private” employers for outstanding professors and researchers, and generally do not fit within the definition of § 203(b)(1)(B) unless the government agency is shown to be a U.S. university or institution of higher learning. The guidance notes that government agencies that do not fit the definition under § 203(b)(1)(B) may have other available immigration avenues to offer permanent employment to professors or researchers. For example, the guidance notes, assuming all of the eligibility requirements for that visa preference category have been met, a government agency may request an “alien of extraordinary ability” green card classification under INA § 203(b)(1)(A).

The guidance also discusses the 180-day validity period for approved labor certifications that have an ending validity date that falls on a Saturday, Sunday, or federal holiday. USCIS said that it will accept the filing of I-140 petitions on the next business day where the supporting labor certification validity period ends on a Saturday, Sunday, or federal holiday.

The guidance is available at http://www.uscis.gov/USCIS/New%20Structure/Laws%20and%20Regulations/Memoranda/*2009%20Memos%20By%20Month/Sep%202009/AFM%20AD07-26%20Signed.pdf.

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4. USCIS Temporarily Accepts Incorrectly Denied LCAs for Certain H-1B Cases

In August and September 2009, the U.S. Citizenship and Immigration Services (USCIS) ombudsman received complaints about H-1B cases with incorrectly denied labor condition applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). The ombudsman said that LCA processing delays and errors at the DOL, when coupled with USCIS’s current H-1B petition initial filing requirements, “are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions.” Untimely H-1B petition filings lead to problems, the ombudsman noted, including: (1) the potential loss of employees’ legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas because of the loss of status.

In August and September 2009, the U.S. Citizenship and Immigration Services (USCIS) ombudsman received complaints about H-1B cases with incorrectly denied labor condition applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). The ombudsman said that LCA processing delays and errors at the DOL, when coupled with USCIS’s current H-1B petition initial filing requirements, “are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions.” Untimely H-1B petition filings lead to problems, the ombudsman noted, including: (1) the potential loss of employees’ legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas because of the loss of status.

On November 5, 2009, USCIS announced that it would temporarily accept H-1B petitions filed without LCAs that have been certified by the DOL for a 120-day period, through March 4, 2010. USCIS noted, however, that it will only accept such H-1B petitions if they are filed at least seven calendar days after the LCAs were filed with the DOL and include evidence of these filings. The only acceptable evidence of filing is a copy of the DOL’s e-mail giving notice of receipt of the LCA.

Petitioners who seek to take advantage of this temporary flexibility in the normal filing procedures for H-1B petitions must wait until they receive a request for evidence (RFE) before they submit the DOL-certified LCA to USCIS in support of the H-1B petition, USCIS said. The agency will give petitioners 30 calendar days within which they must send in a DOL certified LCA in response to the RFE. USCIS will only approve H-1B petitions that include certified LCAs. See http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Nov%202009/Attachment%20to%20Temporary%20Acceptance%20of%20H-1B%20Petitions.pdf.

The ombudsman’s report, “Temporary Acceptance of Labor Condition Applications (LCAs) for Certain H-1B Filings,” was released on October 23, 2009, and is available at http://www.dhs.gov/xlibrary/assets/cisomb_recommendation_43_LCAs_October_2009.pdf.

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5. Labor Dept. Announces Expiration of H-1C Nursing Program

The Department of Labor (DOL) has announced that the H-1C program, established under the Nursing Relief for Disadvantaged Areas Reauthorization Act, will sunset on December 21, 2009. Congress has not reinstated the program and, absent further legislative action, will no longer accept H-1C attestations from hospitals. The DOL said that questions about the H-1C program should be addressed to tlc.chicago@dol.gov. For more, see http://www.foreignlaborcert.doleta.gov/news.cfm.
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6. DOL Extends H-2A Transition Period

The Department of Labor has published an interim final rule extending the transition period application filing procedures implemented under the December 2008 H-2A final rule. The application filing procedures under the extended transition period apply to all employers with dates of need before June 1, 2010. The interim rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-27496.pdf.
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7. USCIS Releases Fact Sheet on ‘Public Charge’ Determinations

U.S. Citizenship and Immigration Services has released a fact sheet on public charge determinations. The agency noted that although an individual who is likely at any time to become a public charge is inadmissible to the U.S. and ineligible to become a legal permanent resident, receiving public benefits does not automatically make an individual a public charge. The fact sheet outlines benefits that could make a noncitizen inadmissible as a public charge if other criteria are met, and also lists benefits that are for special purposes rather than income maintenance and therefore not subject to public charge consideration, such as Medicaid, Food Stamps, the Children’s Health Insurance Program, foster care and adoption assistance, job training programs, and emergency disaster relief.

The fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/public_charge_fact_%20sheet_11_06_09.pdf

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8. December Visa Bulletin Notes Reinstatement of Certain Religious Workers and Investor Pilot Program Categories

The Department of State’s Visa Bulletin for December 2009 notes that legislation in October extended the employment fourth preference “Certain Religious Workers” and employment fifth preference “Investor Pilot Program” green card categories for three years, through September 30, 2012.

Other employment-based categories generally have not budged since November’s Bulletin, with the exception of the India third preference and “Other Workers” categories, which both advanced one month, to May 1, 2001.

The December 2009 Visa Bulletin is available at http://www.travel.state.gov/visa/frvi/bulletin/bulletin_4587.html.

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9. Recent News from ABIL Members

H. Ronald Klasko (bio: http://www.abil.com/lawyers/lawyers-klasko.cfm) recently served as co-chair of the EB-5 Stakeholders Conference in Washington, D.C. Representatives from U.S. Citizenship and Immigration Services hosted the event and answered questions about the EB-5 visa program.

Steve Garfinkel (bio: http://www.abil.com/lawyers/lawyers-garfinkel.cfm) presented at the 2009 North Carolina School Boards Association Annual Conference on November 16. The presentation, “Immigration Law Update,” discussed immigration law’s important role in day-to-day decisions. Mr. Garfinkel provided answers to challenging situations ranging from dealing with foreign student issues to temporary and permanent work visas for faculty.

Mr. Garfinkel also presented to the Charlotte Chapter of the Association of Corporate Counsel on November 18. “An Immigration Law Update – Employers Are Now the Target” reviewed recent changes that affect employers, including worksite visits, audits, and other developments.

Steven A. Clark (bio: http://www.abil.com/lawyers/lawyers-clark.cfm) participated in a telephonic panel discussion of immigrant options for entrepreneurs sponsored by Immigration Lawyers on the Web (ilw.com) on November 18. Mr. Clark covered issues of timing and eligibility under PERM, and the uses of B-1 business visitor visas in setting up an establishment and visiting on behalf of a parent company abroad. See http://www.ilw.com/seminars/200926.shtm.

On November 2, 2009, Flynn & Clark, P.C., was invited by Harvard University to present to its post-doctoral fellows and other graduate students a seminar covering the various pathways to permanent residence. Speakers, including Mr. Clark, addressed employment-based green cards (including PERM, EB-1, and national interest waivers) and family-based sponsorship, as well as immigration through the diversity visa lottery program. Concerns of special interest to foreign medical graduates, such as J-1 waivers, were also addressed. A lively question-and-answer session followed the presentation.

“The process for getting through the EB-5 program is like the experience of having a Q-tip pierce your brain. It’s painful,” said Angelo A. Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm), as quoted in the November 10, 2009, issue of the Los Angeles Daily Journal.

In the same issue, Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) said, “Some investors are skittish about using the EB 5 program because you only get a conditional green card.” He likened the process to “trying to thread three or four pieces of yarn through a single needle. Investors are required to comply with securities laws, immigration law, and tax law. You have to have a sense of how many jobs will be created in the future, and then make sure those jobs are in place two years later, along with a host of other requirements.” Mr. Yale-Loehr said a new legislative proposal could “clarify a lot of key issues to help both investors and the immigration agency understand the proper parameters” of the EB-5 program.

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10. Government Agency Links

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

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

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

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

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Headlines:

1. DHS Rescinds ‘No-Match’ Rules – DHS said it will focus its enforcement efforts relating to the employment of unauthorized workers on improved verification.

2. Congress Poised To Extend Four Immigration Programs for Three Years – The final conference report includes a three-year extension for four immigration programs: (1) the E-Verify program; (2) the EB-5 immigrant investor regional center program; (3) certain EB-4 religious workers; and (4) the Conrad State 30 program for certain J-1 foreign doctors.

3. Many Visa Number Cut-Off Dates Not Budging in November, State Dept. Says; Two Employment Visa Categories Set To Expire – It has been necessary to hold most of the employment cut-off dates for November, and the Department said it is not possible to provide an estimate of future cut-off date movements.

4. USCIS Issues Controversial Clarification of Requirements for Agents Filing as Petitioners for O and P Visas – A commentator predicts that this news release “will shake up the world of arts and entertainment.”

5. State Dept. Issues DV-2011 Visa Lottery Instructions – Entries for the DV-2011 Lottery must be submitted electronically by noon EST on Monday, November 30, 2009.

6. State Dept. Issues Final Rule on Documentation of Nonimmigrants in Religious Occupations – Consular officers must ensure that R-1 visa applicants have obtained an approved USCIS Form I-129 petition before a visa can be issued.

7. NYC Mayor Bloomberg Announces New Immigration Efforts – Mayor Bloomberg has called immigrants the “lifeblood of New York City.”

8. State Dept. Receives Petition for New U.S.-Mexico Bridge – The bridge would enable ticketed airline passengers to travel between Mexico’s Tijuana International Airport and San Diego via an enclosed, elevated pedestrian bridge.

9. USCIS Launches E-Notification – USCIS has launched an “E-Notification” initiative for immigration applications and petitions filed at one of three USCIS Lockbox facilities.

10. USCIS Announces New Notice of Entry of Appearance Forms for Attorneys and Accredited Representatives – A revised Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) and a new Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States (Form G-28I) have been issued.

11. Recent News from ABIL Members – Recent News from ABIL Members

12. Government Agency Links – Government Agency Links

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Details:

1. DHS Rescinds ‘No-Match’ Rules

Effective November 6, 2009, the Department of Homeland Security (DHS) is rescinding the final rules it promulgated in 2007 and 2008 relating to procedures that employers may take to acquire a safe harbor from receipt of “no-match” letters, which the Social Security Administration (SSA) sends to employers when the combination of an employee name and social security number does not match SSA records. DHS proposed to rescind the no-match rules on August 19, 2009, and is issuing this final rule without change.

Implementation of the 2007 final rule was preliminarily enjoined by the U.S. District Court for the Northern District of California on October 10, 2007. After further review, DHS said it will focus its enforcement efforts relating to the employment of unauthorized workers on improved verification, including participation in E-Verify, the ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs. DHS said that IMAGE is “designed to help the business community develop and implement hiring and employment verification best practices.”

USCIS said that “[t]hese tools focus on more universal compliance with the employment eligibility verification requirements of the Immigration and Nationality Act than a safe harbor procedure for a limited number of employers who receive a No-Match letter.” The agency said that a no-match letter is “reactive, either one specifically guided to the employment eligibility issue from ICE or one indirectly pointing to a potential employment eligibility issue through social security number record mismatches on tax filings through SSA.”

DHS also noted that “unscrupulous employers would continue to find ways to take advantage of the system, regardless of whether the No-Match rules were in place.” The agency said it focuses criminal and civil enforcement efforts against “the most egregious violators: employers who use unauthorized workers in order to gain a competitive advantage or those who exploit the vulnerable, often engaging in human trafficking and smuggling, identity theft, and social security number and document fraud”; and “employers in the Nation’s critical infrastructure sites, including airports, seaports and power plants.”

The final rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-24200.pdf.

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2. Congress Poised To Extend Four Immigration Programs for Three Years

House and Senate conferees completed their negotiations on the final version of the fiscal year 2010 Department of Homeland Security appropriations bill (H.R. 2892) on October 7, 2009. The final conference report includes a three-year extension for four immigration programs: (1) the E-Verify program; (2) the EB-5 immigrant investor regional center program; (3) certain EB-4 religious workers; and (4) the Conrad State 30 program for certain J-1 foreign doctors.

The final three-year compromise emerged after a very contentious internal debate and a nearly successful effort by some members of Congress to eliminate all immigration “extender” provisions from the bill.

The conference version of the bill will now go to the House and Senate for final votes and then to President Obama for signature. The President is expected to sign the bill before October 31, when the four programs are currently scheduled to expire.

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3. Many Visa Number Cut-Off Dates Not Budging in November, State Dept. Says; Two Employment Visa Categories Set To Expire

The State Department’s Visa Bulletin for November 2009 notes that demand from U.S. Citizenship and Immigration Services offices has far exceeded earlier indications of cases eligible for immediate processing. As a result, the Department said, it has been necessary to hold most of the employment cut-off dates for November, and it is not possible to provide an estimate of future cut-off date movements.

Regarding the employment fourth preference “certain religious workers” category, the Visa Bulletin notes that the non-minister special immigrant program expires on October 30, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after October 30, 2009. Visas issued before that date may only be issued with a validity date of October 30, 2009, and all individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. no later than midnight on October 30, 2009.

Regarding the employment fifth preference pilot categories (I5, R5), the immigrant investor pilot program was extended through October 30, 2009. I5 and R5 visas may be issued until the close of business on October 30, 2009, and may be issued for the full validity period. No I5-1, I5-2, I5-3, R5-1, R5-2, or R5-3 visas may be issued after October 30, 2009.

The cut-off dates for the categories mentioned above have been listed as “Unavailable” for November. If there is legislative action extending one or both of these categories for fiscal year 2010, the Department said, those cut-off dates would become “Current” for November. As noted in article #2 above, Congress is about to extend those two categories for three years.

The Visa Bulletin for November 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4576.html.

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4. USCIS Issues Controversial Clarification of Requirements for Agents Filing as Petitioners for O and P Visas

U.S. Citizenship and Immigration Services (USCIS) issued a controversial clarification on October 7, 2009, for performing arts associations and their members of the regulatory requirements for agents who file as petitioners for the O and P visa classification. The agency said it issued the clarification in response to inquiries “that reveal confusion regarding the circumstances under which an agent may file O and P petitions on behalf of multiple employers.”

USCIS noted that O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. Both the O and P regulations provide that if the beneficiary employee will work concurrently for more than one employer within the same time period, each employer must file a separate petition with the USCIS Service Center that has jurisdiction over the area where the person will perform services, unless an “established agent” files the petition.

A petition filed by an agent is subject to several conditions, USCIS noted. A petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if:

• The supporting documentation includes a complete itinerary of the event or events.
• The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed.
• The contract between the employers and the beneficiary is submitted.
• The agent explains the terms and conditions of the employment and provides any required documentation.

In addition, USCIS pointed out, an agent who is also the beneficiary’s employer may file a petition, but the agent must specify the wage offered and the other terms and conditions of employment as described in the contractual agreement between the agent/employer and the beneficiary employee. Therefore, while the regulations permit an agent to file a petition on behalf of multiple employers (including the agent/employer itself), the regulations require that the agent be “in business” as an agent. An employer that files a petition on behalf of other employers under the guise of being such employers’ “agent” does not meet this condition, the agency said. “For example, if Employer A files a petition for a beneficiary it will be sponsoring, and submits an itinerary that includes performances for the beneficiary with other employers, at different times, and at different venues, USCIS generally would only approve the petition for Employer A and deny the petition with respect to the other employers.”

Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is “in business as an agent,” and that the other employers are its clients. This may be accomplished, USCIS said, by agent-Employer A submitting all of the required evidence listed above, as well as evidence of the agency relationship, such as a copy of its contract with the other employers.

ABIL member Angelo Paparelli (http://www.abil.com/lawyers/lawyers-paparelli.cfm) predicts that this news release will shake up the world of arts and entertainment. As the “Nation of Immigrators” blog notes, “Major producing and presenting venues, arts organizations, funding and grant-making organizations, the theatre-going public, and especially immigration practitioners who work with performers should all object formally, forcefully, and fast. Unless this informal rule is rescinded, American theaters, concert halls and other presenting venues are going to find big holes in their budgets for upcoming seasons, and risk losing touch with the world of art and entertainment outside our borders.”

The USCIS news release is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-Oct09_update.pdf. A related fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-oct-09-factsheet.pdf. The blog is available at http://www.nationofimmigrators.com/.

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5. State Dept. Issues DV-2011 Visa Lottery Instructions

On October 6, 2009, the Department of State announced that entries for the DV-2011 Lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5) Monday, November 30, 2009.

Applicants may access the electronic Diversity Visa (E-DV) Entry Form at http://www.dvlottery.state.gov/ during the registration period. Paper entries will not be accepted. The Department strongly encourages applicants not to wait until the last week of the registration period to enter. Heavy demand may result in Web site delays. No entries will be accepted after noon, EST, on November 30, 2009. All entries by an individual will be disqualified if more than one entry for that individual is received, regardless of who submitted the entry.

For DV-2011, no countries have been added or removed from the previous year’s list of eligible countries. For DV-2011, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

The full instructions, including details on eligibility and how to apply, are available at http://edocket.access.gpo.gov/2009/pdf/E9-24077.pdf.

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6. State Dept. Issues Final Rule on Documentation of Nonimmigrants in Religious Occupations

To comply with the Department of Homeland Security regulation requiring sponsoring employers to file petitions for all persons for whom R-1 nonimmigrant status is sought, the Department of State issued a final rule, effective October 6, 2009, that establishes a requirement that consular officers ensure that R-1 visa applicants have obtained an approved U.S. Citizenship and Immigration Services (USCIS) Petition for a Nonimmigrant Worker (Form I-129) before a visa can be issued.

The Department explained that USCIS has implemented the petition requirement for nonimmigrant religious workers as a way to determine the bona fides of a petitioning religious organization located in the U.S. and to determine that a religious worker will be admitted to the U.S. to work for a specific religious organization at the request of that organization.

The final rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-24089.pdf.

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7. NYC Mayor Bloomberg Announces New Immigration Efforts

In a recent speech at CUNY Graduate Center, New York City Mayor Michael Bloomberg said the city “needs more immigrants.” As part of his plan for a possible third term should he be reelected on November 3, 2009, Mayor Bloomberg has called immigrants the “lifeblood of New York City” and expressed his support for comprehensive immigration reform with a pathway to citizenship and for the DREAM Act, “which would allow children of undocumented immigrants to become citizens in exchange for attending college or performing military service.” Mr. Bloomberg also plans to create an Immigrant Advisory Board “with members of the religious, labor, business, cultural, and community-based networks to meet quarterly.”

Mr. Bloomberg noted that in June 2009, the city’s Department of Small Businesses Services (SBS) unveiled an initiative to help Latino small business owners that included a financing fair, a full-day seminar on business assistance and government resources, information resources in Spanish and English (http://nyc.gov/html/sbs/html/pr/news_latinobusiness.shtml), the launch of an online directory on the National Hispanic Business Information Clearinghouse Web site (http://hispanicbic.org/businessDirectory.php), and the opening of a new NYC Business Solutions satellite office in Washington Heights. “This targeted strategy to assist Hispanic small businesses will be replicated for other immigrant small business communities,” Mr. Bloomberg said. “SBS will be charged with developing and executing community-specific strategies for the largest immigrant small business communities in New York City over the third term.”

Among other things, Mr. Bloomberg also said that New York City will partner with private law firms to dispatch deferred legal associates to immigrant communities in need of quality legal assistance and representation. The associates will be deployed for a minimum one-year fellowship. The city will commit $2 million to the effort to cover a team of supervising attorneys and ongoing training of associates and technical assistance in the area of immigration law. The city also will work with local law schools to engage alumni into a “Call to Service for the Legal Community” to provide pro bono legal assistance to immigrants.

“Immigrants: The Lifeblood of New York City” is available at http://www.mikebloomberg.com/ImmigrantsLifebloodNYC.pdf.

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8. State Dept. Receives Petition for New U.S.-Mexico Bridge

The Department of State recently received an application for a Presidential permit to construct, operate, and maintain a new international pedestrian bridge, the “San Diego-Tijuana Airport Cross Border Facility (CBF),” to be located on the U.S.-Mexico border near San Diego, California, and Tijuana, Baja California, Mexico. Otay-Tijuana Venture, L.L.C., consists of companies owned by U.S. and Mexican investors and is undertaking the project as a for-profit, commercial activity. The CBF would enable ticketed airline passengers to travel between Mexico’s Tijuana International Airport and San Diego via an enclosed, elevated pedestrian bridge. The CBF would allow such travelers to bypass San Diego’s ports of entry and to avoid driving through the city of Tijuana.

Written comments are invited by December 31, 2009, and should be sent to the person named in the notice, which is available at http://edocket.access.gpo.gov/2009/pdf/E9-23812.pdf.

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9. USCIS Launches E-Notification

U.S. Citizenship and Immigration Services (USCIS) has launched an “E-Notification” initiative for immigration applications and petitions filed at USCIS Lockbox facilities in Chicago, Illinois; Phoenix, Arizona; and Lewisville, Texas. If you file your USCIS applications and/or petitions at one of these facilities, you will have the option to receive an e-mail and/or text message informing you that USCIS has accepted your application or petition. If you would like to receive an E-Notification that your application or petition has been accepted, complete Form G-1145, E-Notification of Application/Petition Acceptance, and attach it to the top of your application or petition.

Forms that are currently processed through the USCIS Lockbox facilities relate to:

• Family-based forms
• Applications for Temporary Protected Status
• Card replacement
• Citizenship and naturalization forms
• Adoption forms

By the end of 2009, the following additional forms are expected to be filed through Lockbox facilities:

• All remaining adjustment-of-status forms
• All employment authorization request forms
• All requests for travel documents

A fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/FY%2009/September%202009/E-Notification%20Capability%20Fact%20Sheet_16Sep09.pdf.

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10. USCIS Announces New Notice of Entry of Appearance Forms for Attorneys and Accredited Representatives

U.S. Citizenship and Immigration Services (USCIS) has announced that a revised Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) and a new Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States (Form G-28I) have been issued.

USCIS is providing a “grace period” until October 30, 2009, so that G-28s currently in the mail will be considered valid when received at the USCIS Lockbox facility or USCIS Service Center. After October 30, any previous versions of the G-28 that are received will be considered invalid. All G-28s filed before October 30 will be honored for previously filed cases as long as the G-28 was properly completed by an eligible attorney or accredited representative. The new G-28 is not required for receiving updates or interviews unless a new attorney is representing the applicant.

The new G-28I is for use by attorneys admitted to practice law who seek to appear before the Department of Homeland Security (DHS) in matters outside of the U.S. Acceptance by a DHS entity of a completed G-28I does not itself constitute approval by the DHS entity for the attorney to represent the applicant or petitioner in the matter for which the G-28I was filed. The G-28I may not be filed for matters in DHS offices within the U.S.

The American Immigration Lawyers Association (AILA) has noted concerns with the short implementation timeframe for the new forms, as well as other issues, including the fact that the revised G-28 requires marking the form with specific USCIS form numbers to which the attorney’s appearance is related. AILA also noted that the revised form has separate areas that would be filled out if the matter is before Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP). In practice, AILA noted, this could have serious implications where related issues are handled by different components of the Department of Homeland Security, such as when a file is transferred from USCIS to ICE for investigation.

The announcement is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/G-28%20Update%209%2029%2009%20FINAL.pdf. The new G-28 form is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=44bd4154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=c94e6d26d17df110VgnVCM1000004718190aRCRD. The new G-28I form is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b70c2cd104314210VgnVCM100000082ca60aRCRD&vgnextchannel=25fb1a3d215a3210VgnVCM100000b92ca60aRCRD.

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11. Recent News from ABIL Members

On September 30, 2009, Steve Garfinkel (http://www.abil.com/lawyers/lawyers-garfinkel.cfm) presented an immigration law update to members of The Employer’s Association (http://www.employersassoc.com). In his presentation, Steve reviewed worksite compliance matters as they relate to government visits in the workplace.

On October 19, 2009, Ron Klasko (http://www.abil.com/lawyers/lawyers-klasko.cfm), Bernie Wolfsdorf (http://www.abil.com/lawyers/lawyers-wolfsdorf.cfm), and Steve Yale-Loehr (http://www.abil.com/lawyers/lawyers-loehr.cfm) will speak on various EB-5 immigrant investor issues at a day-long EB-5 conference in San Francisco sponsored by the American Immigration Lawyers Association. For more information, go to http://www.aila.org/content/default.aspx?docid=29141.

Mr. Yale-Loehr was quoted in an October 10, 2009, article in the South China Morning Post about the EB-5 immigrant investor program. As Steve noted in the article, ” [t]he EB-5 program packs a powerful economic punch in the current depressed economy.”

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12. 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 Issues Guidance on E-Verify Federal Contractor Rule – Companies awarded a contract with the E-Verify clause are now required to enroll in E-Verify within 30 days of the contract award date.

2. October Visa Bulletin Shows EB-3s Backlogged 7 Years, Several Programs Expiring on September 30 – EB-3 cut-off dates are in 2001 and 2002.

3. Labor Dept. Issues Proposed Rule on Temporary Agricultural Employment of – The Department has concluded that the policy underpinnings of a 2008 H-2A streamlining final rule do not provide an adequate level of protection for either U.S. or foreign workers.

4. USCIS Proposes Nonimmigrant Investor Visa Classification for Northern Marianas – This status would be available only to investors in the CNMI who have been granted a qualifying status by the CNMI before November 28, 2009.

5. Recent News from ABIL Members – Recent News from ABIL Members

6. Government Agency Links – Government Agency Links

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Details:

1. USCIS Issues Guidance on E-Verify Federal Contractor Rule

U.S. Citizenship and Immigration Services (USCIS) reminded federal contractors and subcontractors that effective September 8, 2009, they “may be required” to use the E-Verify system to verify their employees’ eligibility to work in the United States if their contract includes the Federal Acquisition Regulation (FAR) E-Verify clause. The regulation states that federal contracts will be awarded only to employers who use E-Verify to check employee work authorization.

The E-Verify federal contractor rule extends use of the E-Verify system to cover both federal contractors and subcontractors, including those who receive American Recovery and Reinvestment Act funds. Applicable federal contracts awarded and solicitations issued on or after September 8 will include a clause committing government contractors to use E-Verify.

Companies awarded a contract with the E-Verify clause are now required to enroll in E-Verify within 30 days of the contract award date. With certain exceptions, E-Verify must be used to confirm that all new hires, whether employed on a federal contract or not, and existing employees directly working on these contracts are legally authorized to work in the U.S.

More than 148,000 participating employers at nearly 560,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility, according to USCIS. The agency noted that since October 1, 2008, more than 7.8 million employment verification queries have been run through the system and approximately 96.9 percent of all queries are now automatically confirmed as work-authorized within 24 hours or less.

The USCIS announcement is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/September%202009/EVerifyFederalContractorRule8Sep09.pdf.

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2. October Visa Bulletin Shows EB-3s Backlogged 7 Years, Several Programs Expiring on September 30

The Department of State’s October 2009 Visa Bulletin shows a cut-off date for employment-based third preference visa numbers of June 1, 2002, for all chargeability areas except for China-mainland born (February 22, 2002); India (April 15, 2001); Mexico (May 1, 2002); and Philippines (June 1, 2002).

All chargeability areas are current for EB-2 numbers, except for China-mainland born (March 22, 2005), and India (January 22, 2005). For the third preference “Other Workers” category, all chargeability areas have a cut-off date of June 1, 2001, except for India (April 15, 2001).

Meanwhile, the non-minister special immigrant program expires on September 30, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after September 30, 2009. Visas issued before that date will only be issued with a validity date of September 30, 2009, and all individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. no later than midnight September 30, 2009.

Also, the employment fifth preference (I5, R5) immigrant investor pilot program has been extended through September 30, 2009. I5 and R5 visas may be issued until the close of business on September 30, 2009, and may be issued for the full validity period. No I5-1, I5-2, I5-3, R5-1, R5-2, or R5-3 visas may be issued after September 30, 2009.

The Visa Bulletin for October 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4575.html.

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3. Labor Dept. Issues Proposed Rule on Temporary Agricultural Employment of

The Department of Labor’s Wage and Hour Division proposes to amend its regulations governing the certification of temporary employment of nonimmigrant workers in temporary or seasonal agricultural employment and the enforcement of the contractual obligations applicable to employers of such nonimmigrant workers. The proposed rule reexamines the process by which employers obtain a temporary labor certification from the Department for use in petitioning the Department of Homeland Security (DHS) to employ a nonimmigrant worker in H-2A status. The Department also proposes to provide for enforcement under the H-2A program so that workers are protected when employers fail to meet the requirements of the H-2A program.

The Department said it has concluded that the policy underpinnings of a 2008 H-2A streamlining final rule do not provide an adequate level of protection for either U.S. or foreign workers. In addition, the Department noted, one of the goals of the 2008 final rule was to increase usage of the H-2A program and make it easier and more affordable for the average employer. Applications have decreased since implementation of that rule, however. Employers filed 3,176 applications in the first three and a half months of fiscal year 2009, before implementation of the 2008 final rule. In the six and a half months from January 17, 2009, to July 31, 2009, employers filed 4,214 applications. When compared to the previous year (fiscal year 2008), however, in which employers filed 8,360 applications, it is apparent that employers are not increasing their usage of the H-2A program. “While factors other than the regulatory changes may play a role in this decrease, without accomplishing the prior rules’ goal of increasing program usage, the Department can no longer justify the significant decrease in worker protections,” the Department said.

The Department also said it believes that there are insufficient worker protections in the attestation-based model in which employers merely confirm, but do not demonstrate to the satisfaction of a government observer, that they have performed an adequate test of the U.S. labor market. Even in the first year of the attestation model, the Department said, employers are attesting to compliance with program obligations with which they have not complied, “either from a lack of understanding or otherwise.” Specific situations the Department noted include employers “who have imposed obstacles in the way of U.S. workers seeking employment. Examples of this have included the requirement of interviewing in-person at remote interview sites that require payment to access; multiple interview processes for job opportunities requiring no skills or experience; test requirements that are not disclosed to the applicants; contact information that is disconnected, is located outside the U.S., or proves incorrect; farm labor contractors who attest to a valid license but have none; and contractors who have not obtained surety bonds.”

The Department also noted that the shift from the Adverse Effect Wage Rate (AEWR) as calculated under the 1987 rule to the recalibration of the prevailing wage as the AEWR under the 2008 final rule has resulted in a substantial reduction of farmworker wages in a number of labor categories.

The proposed rule, which includes a number of requirements and a proposed timetable under the proposed H-2A program, is available at http://edocket.access.gpo.gov/2009/pdf/E9-21017.pdf. The Department made a technical correction to the proposed rule, available at http://edocket.access.gpo.gov/2009/pdf/E9-21274.pdf.

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4. USCIS Proposes Nonimmigrant Investor Visa Classification for Northern Marianas

The Department of Homeland Security (DHS) issued a proposed rule on September 14, 2009, proposing to recognize a Commonwealth of the Northern Mariana Islands (CNMI)-specific nonimmigrant investor visa classification. The “E-2 CNMI Investor” status is one of several CNMI-specific provisions in the Consolidated Natural Resources Act of 2008, which extended most provisions of federal U.S. immigration law to the CNMI. This status would be available only to investors in the CNMI who have been granted a qualifying status by the CNMI before the “transition period,” which begins on November 28, 2009, and ends on December 31, 2014. With E-2 CNMI Investor nonimmigrant status, eligible CNMI investors would be able to remain in the CNMI for an initial period of two years, and the period would be renewable through the duration of the transition period. CNMI investors would be able to exit and enter the CNMI with valid E-2 CNMI Investor visas.

DHS said it is proposing temporary provisions for the transition period “to provide for an orderly transition from the current CNMI permit system to the immigration laws of the U.S., to lessen potential effects on the CNMI economy, and to give foreign long-term investors time to identify and obtain appropriate U.S. immigrant or nonimmigrant status.”

The proposed rule is available at 74 Fed. Reg. 46938 (Sept. 14, 2009) (http://edocket.access.gpo.gov/2009/pdf/E9-21967.pdf). Related questions-and-answers are available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/September%202009/CNMI_InvestorQandA.pdf.

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5. Recent News from ABIL Members

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm) recently posted a blog, “USCIS Puts Silent Kibosh on Successorship in Interest for High-Achieving Immigrants.” The blog discusses a recent policy memorandum issued by U.S. Citizenship and Immigration Services that Mr. Paparelli says illustrates “just how much damage can ensue when bureaucrats pass rules without the beneficial vetting required by statute and presidential orders.” The memo in question is an August 6, 2009, Policy Memorandum by Donald Neufeld, Acting Associate Director, Operations for USCIS. Mr. Neufeld’s memorandum, “Successor-in-Interest Determinations in Adjudication of Form I-140 Petitions,” purports to modernize the interpretation of continuing green-card eligibility for employees of businesses involved in corporate reorganizations so that surviving entities need not restart the years-long immigrant visa process from scratch, but “by failing to give the public and the stakeholder community an opportunity to enlighten the agency on the legal and real-world implications of its contemplated change, USCIS creates mischief and mishigas for itself and for the highest of high-achievers in the immigration pantheon,” Mr. Paparelli says. The blog is available at http://www.nationofimmigrators.com/?p=271. The memo is available at http://www.uscis.gov/USCIS/Laws%20and%20Regulations/Memoranda/2009%20Memos%20By%20Month/August%202009/Successor-in-Interest-8-6-09.pdf.

Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm) recently co-authored a blog, “The Grassley-Durbin Bill To Restrict H-1B and L Visas Is the Wrong Solution at the Wrong Time.” The blog argues that the U.S. is in a global battle for human capital, and that the nation that attracts and retains human capital will dominate the information economy of our digital age: “The proposed bill of Senators Grassley and Durbin will do exactly the opposite.” The blog is posted at http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus20099111575.

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6. 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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