Headlines:

1. U.S. Supreme Court Denies Rehearing in U.S. v. Texas -The Court’s refusal to reconsider the case means that DAPA and expanded DACA remain blocked. The original DACA program is unaffected.

2. USCIS Increases Validity of Work Permits to Two Years for Asylum Applicants -USCIS has increased the validity period for initial or renewal Employment Authorization Documents for asylum applicants from one year to two years.

3. ABIL Submits Comments on DOJ Proposed Antidiscrimination Rule -ABIL argued that, among other things, the proposed rule, without adequate or convincing justification, would inter alia unlawfully expand the class of individuals protected against citizenship status discrimination to include all non-citizens, and unfairly expand the liability of employers and other respondents alleged to have engaged in unfair immigration-related employment practices.

4. New Publications and Items of Interest -New Publications and Items of Interest

5. ABIL Member/Firm News -ABIL Member/Firm News

6. Government Agency Links -Government Agency Links

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Details:

1. U.S. Supreme Court Denies Rehearing in U.S. v. Texas

The U.S. Supreme Court denied rehearing of United States v. Texas on October 3, 2016. The Court’s refusal to reconsider the case, on which it was deadlocked 4-4 in June, means that several Obama administration deferred action programs remain blocked by the U.S. Court of Appeals for the Fifth Circuit’s order. The programs include Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and expanded Deferred Action for Childhood Arrivals (DACA). The original DACA program is unaffected and has continued since 2012.

President Barack Obama’s nomination of Merrick Garland to the Supreme Court has languished for more than 200 days as Senate Republican leaders have refused to take up the matter, holding out for the next presidential election. In its petition for rehearing, the Obama administration had argued that the Court should grant rehearing to provide for a decision when the ninth Justice is appointed, rather than leaving in place “a nationwide injunction of such significance”:

Unless the Court resolves this case in a precedential manner, a matter of “great national importance” involving an “unprecedented and momentous” injunction barring implementation of the Guidance will have been effectively resolved for the country as a whole by a court of appeals that has divided twice, with two judges voting for petitioners and two for respondent States.

Other litigation is progressing or may be taken now that the Supreme Court has decided not to take up the case again. Meanwhile any efforts toward comprehensive immigration reform continue to languish. Stay tuned.

PETITION FOR REHEARING

MORE INFORMATION ON DAPA AND DACA

MORE ON U.S. V.TEXAS

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2. USCIS Increases Validity of Work Permits to Two Years for Asylum Applicants

Effective October 5, 2016, U.S. Citizenship and Immigration Services (USCIS) has increased the validity period for initial or renewal Employment Authorization Documents for asylum applicants from one year to two years. Applicants with pending asylum claims file applications for employment authorization (Forms I-765) under category “(c)(8).” This change applies to all (c)(8)-based applications that are pending as of October 5, 2016, and all such applications filed on or after October 5, 2016.

ANNOUNCEMENT

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3. ABIL Submits Comments on DOJ Proposed Antidiscrimination Rule

The Alliance of Business Immigration Lawyers (ABIL) recently submitted comments on the Department of Justice’s proposed rule, “Standards and Procedures for the Enforcement of the Immigration and Nationality Act.” Among other things, the proposed rule would provide a new definition of the phrase “citizenship status,” amend a discriminatory intent requirement for employers, expand the time periods for investigation and deadlines to file discrimination complaints, and change the definition of “charging party.”

ABIL’s comments note:

[T]he proposed rule, without adequate or convincing justification, would inter alia unlawfully expand the class of individuals protected against citizenship status discrimination to include all non-citizens, and unfairly expand the liability of employers and other respondents alleged to have engaged in unfair immigration-related employment practices. These changes contravene the statutory text and the legislative history of the governing statutes, and would impose unreasonable burdens on employers, even though an employer’s actions were not motivated by immigration-related animus or hostility. The proposed rule would also substantially expand the authority of the Special Counsel to investigate allegations of immigration-related unfair employment practices and the time periods within which individuals and the Special Counsel must file complaints against employers with the Office of the Chief Administrative Hearing Officer (OCAHO).

ABIL member Angelo Paparelli wrote the comments on behalf of ABIL and submitted them to Attorney General Loretta Lynch and the Department of Justice on October 13, 2016. The proposed rule is at 81 Fed. Reg. 53965, with deadline extended at 81 Fed. Reg. 63155.

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4. New Publications and Items of Interest

Department of State Q&A. The Department of State (DOS) met with the American Immigration Lawyers Association (AILA) on October 6, 2016, to discuss a wide range of topics, including updates to the Foreign Affairs Manual, the ConsularOne Online Passport Renewal service, the Enterprise Payment System for passport applications, the Consular Electronic Application Center portal for immigrant visa processing for six pilot posts, the Interview Waiver Program, “permanent resident” for purposes of Form DS-160, blanket L issues, five-year visas for petition-based nonimmigrant categories other than L, validity of a TN visa with a new employer, India issues, Cuba issues, F-1 preference opt-outs, and other issues. Appendices include a summary of AILA’s observations on FAM provisions governing the L classification, J visa questions and answers, and other issues. The 32-page DOS-AILA Q&A.

OSC electronic charge form now available in 11 languages. The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently announced that members of the public can now complete and submit charge forms online through OSC’s website in Arabic, Chinese, French, Haitian Creole, Korean, Portuguese, Russian, Tagalog, and Vietnamese in addition to English and Spanish. The public can continue to submit charge forms by mail, fax, and email. FORMS

The latest E-Verify webinar schedule from USCIS is available HERE.

The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in 30 immigration hotspots around the world.

The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is for:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

An excerpt of the book is on the ABIL website.

The list price is $431, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584

ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS

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5. ABIL Member/Firm News

Robert Loughran spoke about the EB-5 program, the current state of U.S. immigration, and the need for comprehensive immigration reform to the University of Texas’s Lamp organization on October 6, 2016.

Cyrus Mehta has published a new blog entry. “Immigration Inadmissibility, Legal Ethics and Marijuana”

Angelo Paparelli has published a new blog entry. “Beware the Justice Department’s Stealthy Grab for Enhanced Power to Enforce Immigration Discrimination Rules”

Stephen Yale-Loehr was quoted in Spanish by Univision on October 3, 2016, about the Supreme Court’s decision refusing to rehear its 4-4 tie in the DAPA immigration executive action case.

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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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. State Dept. Announces Potential Visa Availability in the Coming Months -The Department of State’s Visa Bulletin for October 2016 provided an overview of potential visa number availability.

2. State Dept. Announces Expiration of Two Employment-Based Visa Categories -The Department of State’s Visa Bulletin for October 2016 announced the expiration at the end of September of the employment fourth preference “Certain Religious Workers” category and the I-5 and R-5 employment fifth preference categories.

3. Sens. Grassley, Leahy Oppose Reauthorization of Unaltered EB-5 Regional Center Program; Rep. Goodlatte Introduces EB-5 Reform Bill -A lot has been happening the last few days in the EB-5 world. Sens. Grassley and Leahy wrote a letter to Senate leadership opposing a straight reauthorization of the EB-5 regional center program without any changes. Also, Rep. Goodlatte introduced an EB-5 reform bill. The 123-page bill would make significant changes to the EB-5 program.

4. ICE Extends and Adds to Employment Authorization for Certain Syrian F-1 Nonimmigrant Students -The new notice will remain in effect until March 31, 2018.

5. DHS Announces Annual Limit for CNMI Transitional Workers -The numerical limitation for the CNMI-Only Transitional Worker (CW-1) nonimmigrant classification for FY 2017 is set at 12,998.

6. DHS Alerts Employers Re Documentation Options in Wake of Flooding -Individuals from affected areas who need to replace lost or damaged documents can consult FEMA fact sheets.

7. DHS Updates Lists of Officials Authorized to Perform Various Immigration Functions -DHS said the lists are outdated and do not reflect the current DHS organizational structure, so the agency updated the lists with the specific officials who are authorized to perform various functions.

8. United States, Mexico Sign MOU To Combat Employment Discrimination -The United States and Mexico agree to collaborate to provide Mexican nationals with information, guidance, and access to education and training resources to help them understand their rights.

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

10. ABIL Member/Firm News -ABIL Member/Firm News

11. Government Agency Links -Government Agency Links

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Details:

1. State Dept. Announces Potential Visa Availability in the Coming Months

The Department of State’s Visa Bulletin for the month of October 2016 provided an overview of potential visa number availability in the coming months:

EB-1: Current

EB-2: Worldwide: Current
China: Up to three months
India: Up to four months

EB-3: Worldwide: The rapid forward movement of this final action date during the past year should generate a significant amount of demand for numbers. When such demand begins to materialize, the Visa Bulletin notes, it will be necessary to limit movement of this final action date.

China: Up to three months
India: Up to one week
Mexico: Will remain at the worldwide date
Philippines: Up to three weeks

EB-4: Current for most countries
El Salvador, Guatemala, and Honduras: up to two months

EB-5: Current for most countries
China-mainland born: Slow forward movement

The Visa Bulletin notes that the above projections indicate what is likely to happen on a monthly basis through January based on current applicant demand patterns. However, determinations of the actual monthly final action dates are subject to fluctuations in applicant demand and a number of other variables, so the Visa Bulletin warns that these dates are not guaranteed.

OCTOBER 2016 VISA BULLETIN

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2. State Dept. Announces Expiration of Two Employment-Based Visa Categories

The Department of State’s Visa Bulletin for the month of October 2016 announced the expiration at the end of September of the employment fourth preference “Certain Religious Workers (SR)” category and the I-5 and R-5 employment fifth preference categories.

Employment fourth preference SR. The non-minister special immigrant program expires on September 30, 2016. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight on September 29, 2016. Visas issued before that date will only be issued with a validity date of September 29, 2016, and all individuals seeking admission as non-minister special immigrants must be admitted into the United States by midnight on September 29, 2016.

The final action date for this category has been listed as “Unavailable” for October. The Visa Bulletin notes that if there is legislative action extending this category for FY 2017, the final action date would immediately become “Current” for October for all countries except El Salvador, Guatemala, and Honduras, which would be subject to a June 15, 2015, final action date.

Employment fifth preference I5 and R5. I5 and R5 visas may be issued until the “close of business” on September 30, 2016, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after September 30, 2016.

The final action dates for the I5 and R5 categories have been listed as “Unavailable” for October. If there is legislative action extending them for FY 2017, the final action dates would immediately become “Current” for October for all countries except China-mainland born I5 and R5, which would be subject to a February 22, 2014, final action date.

Congress is expected to extend the EB-4 special religious worker and EB-5 immigrant investor categories as part of a bill to fund the federal government temporarily past September 30. The temporary extension is likely to last until early December. Stay tuned.

OCTOBER 2016 VISA BULLETIN

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3. Sens. Grassley, Leahy Oppose Reauthorization of Unaltered EB-5 Regional Center Program; Rep. Goodlatte Introduces EB-5 Reform Bill

A lot has been happening the last few days in the EB-5 world. The regional center part of the EB-5 immigrant investor green card program is scheduled to expire on September 30, 2016. On September 8, Sens. Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.), chair and ranking member of the Senate Judiciary Committee, respectively, wrote a letter to Senate leadership opposing a straight reauthorization of the EB-5 regional center program without any changes. According to the letter, the EB-5 regional center program “has become plagued with fraud and abuse, and if not reformed it should be allowed to expire on September 30th.”

Then, late Friday afternoon, September 9, Rep. Bob Goodlatte (R-Va.), chair of the House Judiciary Committee, released a draft of an EB-5 reform bill. The 123-page bill would make significant changes to the EB-5 program, such as increasing the minimum investment amount from the current $500,000 to $800,000, and adding anti-fraud and securities law oversight provisions. The bill was re-released on September 12 with Rep. John Conyers (D-Mich.) as a co-sponsor. The revised bill contains a two-page addition for good faith defrauded investors. The revised bill was introduced as H.R. 5992.

Among other things, the bill would:

• Reauthorize the EB-5 regional center program for five years, until September 30, 2021
• Set aside 4,000 EB-5 visas for rural and “priority urban investment” areas to take effect October 1, 2016
• Allow investors 180 days after a regional center is terminated or debarred to associate the new commercial enterprise (NCE) with a new regional center or to invest in a new NCE
• Require investors to be at least 18 years old, effective after enactment
• Require an EB-5 investor’s tax returns for the last seven years

GRASSLEY-LEAHY LETTER

SECTION-BY-SECTION SUMMARY OF THE DRAFT GOODLATTE BILL

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4. ICE Extends and Adds to Employment Authorization for Certain Syrian F-1 Nonimmigrant Students

In an earlier notice, the Department of Homeland Security’s Bureau of Immigration and Customs Enforcement (ICE) suspended certain requirements for F-1 nonimmigrant students whose country of citizenship is Syria and who have been experiencing severe economic hardship as a direct result of the civil war in Syria since March 2011. A new notice extends the effective date of that notice and expands the application of such suspension to students whose country of citizenship is Syria and who lawfully obtained F-1 nonimmigrant student status between the date of the original notice and September 9, 2016. The new notice was effective September 9, 2016, and will remain in effect until March 31, 2018.

F-1 nonimmigrant students granted employment authorization through the notice will continue to be deemed to be engaged in a “full course of study’ for the duration of their employment authorization if they satisfy the minimum course load requirement. This notice applies exclusively to F-1 nonimmigrant students whose country of citizenship is Syria and who were lawfully present in the United States in F-1 nonimmigrant status on or after April 3, 2012, through September 9, 2016, under INA § 101(a)(15)(F)(i), 8 USC § 1101(a)(15)(F)(i); and are:

1. Enrolled in an institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment of F-1 students,
2. Currently maintaining F-1 status, and
3. Experiencing severe economic hardship as a direct result of the ongoing civil unrest in Syria since March 2011.

ICE records show that as of August 2016, approximately 700 Syrian F-1 visa holders in active status are covered by this notice.

NOTICE

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5. DHS Announces Annual Limit for CNMI Transitional Workers

The Department of Homeland Security (DHS) announced on September 2, 2016, that the numerical limitation for the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) nonimmigrant classification for fiscal year (FY) 2017 (October 1, 2016, through September 30, 2017) is set at 12,998.

The notice announces the mandated annual reduction of the CW-1 numerical limitation and provides additional information about the new CW-1 numerical limit. Under the CW-1 program, employers in the CNMI can apply for temporary permission to employ foreign nationals who are ineligible for any existing employment-based nonimmigrant category under the Immigration and Nationality Act. The CW program is in effect until December 31, 2019.

DHS said it reduced the FY 2017 CW-1 cap by one to meet the CNMI’s existing labor market needs and provide opportunity for potential growth, while meeting a statutory requirement to reduce the cap each year. Because the cap was reached for FY 2016 on May 5, 2016, DHS decided “to preserve the status quo, or current conditions, rather than aggressively reduce CW-1 numbers for FY 2017.” The agency encourages CW-1 employers to file a petition for a CW-1 nonimmigrant worker as early as possible within 6 months of the proposed start date of employment. USCIS said it will reject a petition if it is filed more than 6 months in advance.

DHS reminded CNMI employers that the CW-1 program requires that the foreign worker be ineligible for any other employment-based nonimmigrant visa classification under U.S. immigration law, such as the H-2B classification for temporary or seasonal workers and the H-1B classification for workers in a specialty occupation. DHS urged CNMI employers to reevaluate whether their employees are eligible for any other existing employment-based nonimmigrant category and, if so, to use other U.S. nonimmigrant classifications when appropriate. For workers employed in the CNMI, there is no cap on H-2B or H-1B visas during the transition period ending December 31, 2019.

The announcement does not affect the status of current CW-1 workers unless their employer files for an extension of their current authorized period of stay. Approved petitions with an employment start date between October 1, 2016, and September 30, 2017, will generally count toward the 12,998 cap. The cap applies only to CW-1 principals. It does not directly affect anyone currently holding CW-2 status, which is for spouses and minor children of CW-1 nonimmigrants. However, CW-2 nonimmigrants may be indirectly affected because their status depends upon that of the principal CW-1.

NOTICE

RELATED ANNOUNCEMENT

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6. DHS Alerts Employers Re Documentation Options in Wake of Flooding

The Department of Homeland Security (DHS) issued a notice on September 9, 2016, stating that the agency “is aware of the hardship and ongoing recovery efforts resulting from the recent flooding in areas such as Louisiana and Texas.” DHS noted that individuals from these affected areas who need to replace lost or damaged documents can consult Federal Emergency Management Agency (FEMA) fact sheets for information on replacing lost or damaged documents in Louisiana or Texas.

DHS reminded employers that they must complete Form I-9, Employment Eligibility Verification and, if enrolled in E-Verify, must create a case in E-Verify for all newly hired employees, including those affected by the flooding. DHS also reminded employers that they must accept receipts from employees who choose to present them when completing the I-9.

DETAILS

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7. DHS Updates Lists of Officials Authorized to Perform Various Immigration Functions

The Department of Homeland Security (DHS) amended its regulations on September 9, 2016, to update provisions that list specific immigration officials authorized to perform various immigration functions, including the issuance of notices to appear, warrants of removal, and arrest warrants. DHS said the lists are outdated and do not reflect the current DHS organizational structure, so the agency updated the lists with the specific officials who are currently authorized to perform these various functions. DHS is also making some technical corrections to update nomenclature and outdated references in the affected provisions.

NOTICE

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8. United States, Mexico Sign MOU To Combat Employment Discrimination

The U.S. Department of Justice (DOJ) and Mexico’s Ministry for Foreign Affairs have established a formal partnership to protect workers from discrimination based on citizenship, immigration status, and national origin. On September 1, 2016, Principal Deputy Assistant Attorney General Vanita Gupta, head of DOJ’s Civil Rights Division, and Mexican Ambassador Carlos Sada signed a memorandum of understanding (MOU) between the embassy and its consulates and the Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).

The MOU states the objective as “recogniz[ing] the collaborative relationship between the Participants to protect Mexican workers in the United States of America from employment discrimination in hiring, firing and recruiting or referring for a fee, based on their citizenship, immigration status, and national origin; unfair documentary practices; and retaliation.” To achieve this objective, the United States and Mexico agree to collaborate to provide Mexican nationals with information, guidance, and access to education and training resources to help them understand their rights under the antidiscrimination provision of the Immigration and Nationality Act, and to facilitate the referral of appropriate allegations of discrimination, unfair documentary practices, and retaliation to OSC for investigation.

Among other things, OSC agrees to conduct training sessions on the application and enforcement of the antidiscrimination provision at a mutually determined time and place to appropriate consular staff identified by each Mexican consulate; attend and participate in appropriate forums organized by the Mexican consulates for Mexican nationals and employers involving topics under OSC’s jurisdiction; disseminate compliance and educational materials through the embassy to the Mexican consulates and Mexico’s stakeholders in other locations; and publicize the MOU to interested parties.

The MOU is available in English and Spanish.

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9. New Publications and Items of Interest

The latest E-Verify webinar schedule from USCIS is available HERE.

The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in 30 immigration hotspots around the world.

The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is for:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

An excerpt of the book is on the ABIL website.

The list price is $431, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584

ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS

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10. ABIL Member/Firm News

H. Ronald Klasko recently participated in the “Lazy Days of Summer” Interactive CLE Series presented by Catholic Legal Services on Friday, August 26, 2016 in Miami, Florida. Mr. Klasko moderated the session “A-Z, E-2 to EB-5” and discussed considerations for contemplating prospective E to EB-5 petitions, nuances in direct EB-5 filings, EB-5 legislative initiatives, problem consulates/cases and considerations for USCIS v. consular processing, among other topics. Mr. Klasko also participated as a panelist on “Alternatives to the H Visa and Ways Around the H Cap.” He discussed H-1B1, E-3, TN, H-3, and J visa alternatives, whether it makes sense to file for PERM and forget the H-1B, ethical considerations for filing a number of H-1B petitions for the same client on behalf of different sponsors, and other topics on ethics.

Cyrus Mehta has authored a new blog post. “Harmonious Coexistence: New Parole for International Entrepreneurs and Old Entrepreneur Pathways Portal”

David Isaacson, of Mr. Mehta’s office, has written a new blog entry. “Fewer Rights in Pennsylvania Than Guantanamo: Some Reactions to the Third Circuit’s Decision in Castro v. Dep’t of Homeland Security”

Bernard Wolfsdorf and associates Robert Blanco and Joseph Barnett coauthored an article, “What Does the October Visa Bulletin Mean for EB-5 Industry?,” which appeared in the IIUSA EB-5 Regional Center Industry Weekly Report. The article is available on the Wolfsdorf Rosenthal Blog.

Wolfsdorf Rosenthal LLP is sponsoring the Invest in the USA (IIUSA) 2016 EB-5 Industry Forum in Los Angeles on October 10-11, 2016. Representatives from the firm will attend and will host guests at their booth. The conference will be held on the University of California at Los Angeles campus and will be attended by investment and economic development professionals from around the world. Mr. Wolfsdorf will speak at the conference. For more information or to register.

Stephen Yale-Loehr was quoted recently in an article about labor rights that are lacking for about 700 foreign workers in Hawaii. “It has the fig leaf of legality. This is inconsistent with the general notion in American values, if not law, that workers should be paid a fair wage and not be mistreated.” The article, “Hawaiian Seafood Caught by Foreign Crews Confined on Boats,” Associated Press, Sept. 8, 2016.

Mr. Yale-Loehr and his colleague Carolyn Lee co-wrote a summary analysis of the draft EB-5 reform bill released late on Friday, September 9, 2016, by Rep. Bob Goodlatte, chair of the House Judiciary Committee. Mr. Yale-Loehr and Ms. Lee noted that the draft is largely a reprisal of S. 1501, the main Senate EB-5 bill nearly enacted in late 2015, but contains some key differences that would significantly change the EB-5 immigrant visa program.

Mr. Yale-Loehr was quoted in “GOP Rep. Goodlatte Pushes for EB-5 Reform Bill,” published on September 12, 2016, in Law360. Mr. Yale-Loehr noted that although the bill contains some positive features, such as extending the program for five years, it also includes negative provisions. “Its retroactive effective date provisions are the most problematic. Many of the bill’s changes, such as an increase in the minimum investment amount from the current $500,000 to $800,000, would apply to investors who applied as long ago as June 1, 2015, over 15 months ago.” Mr. Yale-Loehr said that is unfair to investors who applied in good faith under the then-applicable rules. “It also poses problems for U.S. businesses, which may not know what to do with the extra money from investors that the Goodlatte bill would demand, especially if the project has already been completed. Overall, the Goodlatte bill is a poison pill for the EB-5 industry and foreign investors,” he said. The article is available by registering HERE.

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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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

 

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Headlines:

1. EB-4 Visa Limits Reached for Special Immigrants From India -Starting on August 1, 2016, applicants from India who filed Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant on or after January 1, 2010, will not be able to obtain an immigrant visa or adjust status until new visa numbers become available.

2. Mayors Send Open Letter to Presidential Candidates Urging Immigration Reform -The letter was signed by almost 60 mayors and others, including mayors from Baltimore; Boston; Buffalo; Chicago; Denver; Houston; Los Angeles; Minneapolis; New York City; Philadelphia; Phoenix; Salt Lake City; San Francisco; Seattle; and Washington, DC.

3. Justice Dept. Petitions Supreme Court for Rehearing of U.S. v. Texas -The Court’s deadlock in U.S. v. Texas blocked the Obama administration’s Deferred Action for Parents of Americans (DAPA) program.

4. USCIS Ombudsman’s 2016 Report to Congress Recommends Changes -The report summarizes the most pervasive and serious problems, reviews past recommendations to improve USCIS programs and services, and makes new recommendations.

5. DOJ, El Salvador Announce Antidiscrimination Partnership -The agreement’s objective is to protect Salvadoran workers in the United States from employment discrimination in hiring, firing, and recruiting or referring for a fee based on their citizenship, immigration status, or national origin; unfair documentary practices; and retaliation.

6. ABIL Global: Turkey -Turkey’s new immigration agency, The Migration Directorate, has experienced growing pains. Also, Turkey has declared a state of emergency following recent violent events.

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

8. ABIL Member/Firm News -ABIL Member/Firm News

9. Government Agency Links -Government Agency Links

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Details:

1. EB-4 Visa Limits Reached for Special Immigrants From India

As predicted, the Department of State’s Visa Bulletin for the month of August 2016 reflects a final action date of January 1, 2010, for EB-4 visas for special immigrants from India. This means that starting on August 1, 2016, applicants from India who filed Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant on or after January 1, 2010, will not be able to obtain an immigrant visa or adjust status until new visa numbers become available.

The July bulletin previously noted that the establishment of the EB-4 preference Final Action Date of January 1, 2010, “does not mean that applicants are now subject to a wait in excess of six years. That Final Action Date is intended only to stop any further use of numbers by applicants from those countries.”

India has reached its EB-4 visa limit as congressionally mandated for fiscal year 2016, which ends September 30. Information on EB-4 visa availability for fiscal year 2017 will appear in the Department of State’s October Visa Bulletin, which will be published this September.

U.S. Citizenship and Immigration Services (USCIS) released the following related information:

What this action means to EB-4 applicants from India:

Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant

Petitioners from any country, including India, may continue to file Form I-360. There is no annual limit on the number of Form I-360 petitions that USCIS may approve.

Form I-485, Application to Register Permanent Residence or Adjust Status

The final action date is January 1, 2010. This final action date will become effective August 1, 2016.

USCIS will accept all properly filed submissions of Form I-485, Application to Register Permanent Residence or Adjust Status, under the EB-4 classification until July 31, 2016, and will continue to adjudicate applications while visas remain available.

If you file Form I-485 under the EB-4 classification on or after August 1, 2016:

• We will process and make a decision on your Form I-485 only if you filed your Form I-360 petition before January 1, 2010, and your Form I-360 is ultimately approved.
• We will reject and return other Form I-485 applications but will continue to process Form I-360 petitions (even if submitted together with a Form I-485 that gets rejected).

EB-4 applicants from other countries

The final action date for special immigrant applicants for adjustment of status from India, Mexico, El Salvador, Guatemala and Honduras remains January 1, 2010.

Applicants from Mexico should refer to Employment-Based Fourth Preference (EB-4) Visa Limits Reached for Special Immigrants from Mexico.

Applicants from El Salvador, Guatemala, and Honduras should refer to Employment-Based Fourth Preference (EB-4) Visa Limits Reached for Special Immigrants from El Salvador, Guatemala, and Honduras.

We will update the Employment Based Immigration: Fourth Preference EB-4 page if any other countries reach their EB-4 visa limits.

USCIS’s ANNOUNCMENT

AUGUST 2016 VISA BULLETIN

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2. Mayors Send Open Letter to Presidential Candidates Urging Immigration Reform

A national coalition of mayors, Cities for Action, sent an open letter on July 26, 2016, to “the next President of the United States” calling for immigration reform. The letter urges leaders from both the Democratic and Republican parties to commit to supporting immigration reform in the first 100 days of the next presidency, including providing a path to citizenship for undocumented immigrants.

The letter calls for reform that creates a “broad, humane and timely” path to citizenship; supports local economic growth “while protecting the rights and labor standards of all workers”; upholds “immigrants’ due process rights and the rights of those seeking refuge”; and offers “robust local implementation and immigrant integration support.”

The letter also calls on the presidential candidates “to pledge to defend and expand President Obama’s executive actions on immigration” to offer temporary relief to undocumented immigrants “with deep community ties who are not priorities for enforcement.” The letter also asks for a commitment to investments in English classes and legal assistance, municipal ID programs, immigrant entrepreneurial support and language access. “[W]e are ever-deepening our commitment to fostering immigrant-friendly municipalities,” the letter states. “We recognize that the well-being of immigrants impacts the well-being of all.”

The letter was signed by almost 60 mayors and others, including mayors from Baltimore; Boston; Buffalo; Chicago; Denver; Houston; Los Angeles; Minneapolis; New York City; Philadelphia; Phoenix; Salt Lake City; San Francisco; Seattle; and Washington, DC.

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3. Justice Dept. Petitions Supreme Court for Rehearing of U.S. v. Texas

The Department of Justice (DOJ) petitioned the Supreme Court on July 18, 2016, to rehear U.S. v. Texas when a ninth Supreme Court justice is confirmed. The Court’s deadlock in that case blocked the Obama administration’s Deferred Action for Parents of Americans (DAPA) program, which would have allowed undocumented persons who are the parents of U.S. citizens and lawful permanent residents to apply to remain in the United States and work.

In the petition, Acting Solicitor General Ian Gershengorn argued, among other things, that “there is a strong need for definitive resolution by this Court at this state.” DOJ said that the Court “should grant rehearing to provide for a decision by the Court when it has a full complement of Members, rather than allow a nonprecedential affirmance by an equally divided Court to leave in place a nationwide injunction of such significance.” Although rehearings are uncommon, the petition noted that they have been granted in some cases where a Court vacancy resulted in a tie.

If the rehearing is granted, it is unlikely to occur for some time.

THE PETITION

MORE INFORMATION about the Obama administration’s executive actions on immigration.

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4. USCIS Ombudsman’s 2016 Report to Congress Recommends Changes

By statute, the Ombudsman of U.S. Citizenship and Immigration Services (USCIS) submits an Annual Report to Congress by June 30 of each year. The report summarizes the most pervasive and serious problems encountered by individuals and employers applying for immigration benefits with USCIS. The Annual Report also reviews past recommendations to improve USCIS programs and services, and makes new recommendations.

USCIS Ombudsman Maria M. Odom told Congress on June 29, 2016, that USCIS “still has much work to do to resolve longstanding systemic issues that compromise efficiency, quality of adjudications, and customer service.” Noting the agency’s myriad competing priorities, she said USCIS “has made insufficient progress to address processing time delays (critically on the rise in the past 2 years); inconsistencies in adjudications across service centers; substantial failure to meet the 90-day regulatory adjudication deadline for employment authorization documents; and the continued issuance of overly burdensome and unnecessary requests for evidence.” She said she believed the agency would achieve its full potential “as a 21^st century immigration agency when its customer service and adjudicatory functions are consistently prioritized, resourced, and afforded equal oversight.”

This year’s Annual Report, among other things, reviews issues involving the mobility of beneficiaries of employment-based petitions, the integrity of immigrant investor petitions, challenges faced by employees and employers in the H-2 programs, and delays in obtaining employment authorization documents.

Highlights of the report include:

Employment-based immigrant petitions. The report notes that USCIS has taken a number of steps to implement President Obama’s Immigration Accountability Executive Action for businesses and immigrant workers. On November 20, 2015, the agency published the draft policy memorandum, Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability; and a Notice of Proposed Rulemaking (NPRM) on December 31, 2015, to implement certain provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). The report notes that USCIS has still not changed its position that foreign worker beneficiaries lack legal standing in the petition process despite mounting case law to the contrary. The Ombudsman said that USCIS must reconsider its position on employee standing with respect to Form I-140, Immigrant Petition for Alien Worker, “and make a corresponding regulatory change, fully aligning its policy to the letter and spirit of AC21 to provide certain qualified employees greater employment mobility while awaiting the completion of the permanent residence process.”

EB-5 immigrant investor program. The report states that processing times for EB-5 petitions continue to degrade. Stakeholders expressed concerns about USCIS’s Investor Program Office’s (IPO) regulatory authority to administer the program; outdated regulatory requirements; program integrity in light of allegations and findings of fraud or noncompliance with other federal laws; the manipulation of Targeted Employment Areas through gerrymandering; and the inconsistent implementation of policy. The Ombudsman said her office will monitor regulatory and statutory changes to the program initiated by IPO and Congress, and will continue to address stakeholders’ concerns about the quality, consistency, and timeliness of IPO’s adjudications of EB-5 applications and petitions.

H-2 temporary workers and labor trafficking. During the reporting period, the Ombudsman heard from workers’ rights organizations regarding the vulnerabilities and exploitation of H-2 workers sponsored by U.S. employers. The report notes that exploitation takes the form of involuntary servitude or forced labor, and can result in other workplace-based crimes. The Ombudsman participated in interagency activities to address stakeholder concerns, and worked to resolve requests for case assistance by workers encountering challenges in their pursuit of protective immigration benefits. The Ombudsman said her office will continue to explore ways USCIS can collaborate with federal agency partners to address employee exploitation and human trafficking, and will convene Department of Homeland Security (DHS) representatives to discuss how to enhance protections within DHS’s authorities.

H-2B temporary nonagricultural workers. The report notes that stakeholders continue to assert that the H-2 program “is overly regulated and bureaucratic, causing significant challenges in hiring foreign workers” to fill temporary agricultural (H-2A) and nonagricultural (H-2B) jobs. Recent regulatory and legislative developments “have exacerbated conditions affecting both employers and employees, contributing to an overall increase, at least temporarily, in H-2B processing delays,” the report states. The Ombudsman said her office will continue to monitor stakeholder concerns about the treatment of both employers and employees in the H-2B program “to promote improved program functionality and address abuse concerns.”

Requests for evidence. The Ombudsman monitors the rates at which requests for evidence (RFEs) are issued by the Vermont Service Center (VSC) and the California Service Center (CSC) in three high-skilled nonimmigrant visa categories: H-1B (Specialty Occupation Workers), L-1A (Intracompany Transferee Managers and Executives), and L-1B (Specialized Knowledge Workers). The FY 2015 RFE rates for these categories “continues to show disparities between the two service centers, including fluctuations in RFE issuance rates and unexplained divergences,” the report notes. The FY 2015 RFE data in other employment-based nonimmigrant visa categories “also revealed high rates of issuance in two product lines at the VSC: O-1 (Individuals with Extraordinary Ability or Achievement), reported at 49 percent, and P-1 (Internationally Recognized Athletes), which increased to 65 percent,” the report states. The Ombudsman said her office will continue to monitor and engage USCIS on issues pertaining to the quality and frequency of RFEs.

Employment authorization documents. In 2006, 2008, and 2011, the Ombudsman issued formal recommendations suggesting ways to reduce USCIS’s processing delays for employment authorization documents (EADs). USCIS adopted some of the Ombudsman’s recommendations, the report notes, but did not agree that EAD processing was a significant issue, given the small percentage of delayed EADs. However, FY 2015 data showed that EAD adjudications after 90 days reached a “troublesome” 22 percent, or 449,307 filings. With a proposal to eliminate the 90-day processing requirement currently under consideration by the agency, timeliness “remains a real concern for EAD processing,” the report says. The Ombudsman believes the proposed regulatory changes “are not likely to result in decreased processing times, absent significant commitment from the agency to devote resources to improving processing times across the product line.” The Ombudsman said her office “continues to highlight EAD processing delays as a systemic issue, and will continue to monitor and engage the agency as long as EAD delays persist.”

OMBUDSMAN ODOM’s MESSAGE TO CONGRESS

ANNUAL REPORT

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5. DOJ, El Salvador Announce Antidiscrimination Partnership

The U.S. Department of Justice (DOJ) and the Republic of El Salvador recently announced a formal partnership to protect workers from discrimination based on citizenship, immigration status, and national origin. On June 30, 2016, Principal Deputy Assistant Attorney General Vanita Gupta, head of DOJ’s Civil Rights Division, and Salvadoran Ambassador Claudia Canjura De Centeno signed a memorandum of understanding (MOU) between the embassy and its consulates and the division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).

The MOU’s objective is to protect Salvadoran workers in the United States from employment discrimination in hiring, firing, and recruiting or referring for a fee based on their citizenship, immigration status, or national origin; unfair documentary practices; and retaliation. To achieve the objective of the MOU, the participants have agreed to collaborate to provide Salvadoran nationals with information, guidance, and access to education and training resources to help them understand their rights, and to facilitate the referral of appropriate allegations of discrimination, unfair documentary practices, and retaliation to OSC for investigation.

MOU

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6. ABIL Global: Turkey

Turkey’s new immigration agency, The Migration Directorate, has experienced growing pains. Also, Turkey has declared a state of emergency following recent violent events.

New Migration Directorate

On April 12, 2014, Law No. 6458, the Law on Foreigners and International Protection, went into effect for the Republic of Turkey. This new law made vast changes to work and residence permit eligibility and procedure, as well as changes in visa and immigration processing. The statute created a new government entity, the Migration Directorate, under the Interior Ministry. This article briefly reviews the creation and growing pains associated with the new immigration agency.

Database system problems. When the Migration Directorate was created, it was designated as of April 2015 to transfer processing of all residence permits from the Foreigner’s Police Department to the new agency. With that move came a new online system to schedule residence permit appointments, complete and submit applications, and upload supporting documents. As with any new database system, the Migration Directorate experienced many problems with the smooth operation of the online system and with migrating the accumulated data of foreigners already in the Police database to the Migration Directorate database.

Database problems included complete shutdowns of the online system or lock-up of certain applications only (e.g., renewals vs. initial applications), presumably for upgrades. These occasional shutdowns have persisted through summer 2016.

Limitation on entry to applicants and attorneys. The Migration Directorate also has endeavored to limit the number of users it must serve. As of fall 2015, it began to bar any individual who was not the applicant or a certified Turkish attorney. This makes the Migration Directorate the only Turkish government administrative agency that requires attorneys to make filings and inquiries.

General slowdown and growing backlog. Clearly the intent of the Turkish government was to fund a new and more efficient immigration agency to speed up processing of residence permits and shorten appointment backlogs. Unfortunately, thus far that has not been accomplished.

For example, under the Migration Directorate, residence permit renewal applications can now be filed by post and do not require an in-person appointment. However, the Directorate soon became so overwhelmed with deliveries of renewal applications that thousands of applications piled up in the office depot un-reviewed. The problem is that dependents in renewals almost always need a travel document to use upon status expiration. Travel (exit) documents are only being issued for renewals upon personal appearance as long as the renewal application has been recorded. Given the piling up of the renewal applications, they are not being recorded timely, so applicants not only end up not avoiding in-person appearances but experience great difficulties in obtaining travel documents.

To avoid this problem, many who could normally file renewal applications are choosing to file as initial applicants instead, and consequently the backlog for appointments to file initial residence permit applications in Istanbul (the city with the most foreigners in Turkey) has grown to 6 months.

New procedural requirements. Since spring 2015, the Migration Directorate has endeavored to further change procedures regarding foreign documents. One example is that it has drafted a communique requiring foreign biographical documents for residence permit cases to be apostilled. Ironically, such documents submitted to the Labor Ministry for work permits do not require an apostille. These new procedures have added further to the burden on applicants.

In all, the overall goal of more efficient processing of residence permits by creating a new government agency has not been achieved. This is unfortunate; however, the additional burden on the agency over the same time period created by an influx of three million Syrian nationals clearly has made this goal particularly difficult to achieve.

Violent Events and State of Emergency

It remains to be seen what effects the recent violent events in Turkey will have on the numbers of applications being filed and on other immigration issues. The Council of Ministers declared a state of emergency for a period of 90 days beginning July 21, 2016. Although no measure has been adopted yet by the Council under the state of emergency, several measures may be taken, including but not limited to prohibiting residence in specific areas, restricting entrance to and exit from specific residential areas, suspension of education at private or public educational institutions, seizing communication tools and materials, demolishing buildings deemed as posing a danger, ordering curfews, prohibiting walking around and gathering of people and transportation, searching people and confiscating property, prohibition of publications, supervision of broadcasting and videotaping, and prohibiting certain persons and communities from entering into Turkish territory and certain areas or removing them.

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7. New Publications and Items of Interest

The Department of Justice’s Executive Office for Immigration Review (EOIR) invites interested parties to attend a regional stakeholder meeting and webinar/teleconference to discuss the work of the Atlanta Immigration Court on Monday, August 29, 2016, from 10 to 11:30 a.m. (Eastern) in Atlanta, Georgia. In-person attendance is limited to the first 40 individuals to RSVP to Lauren Alder Reid, EOIR Chief and Counsel for the Office of Communications and Legislative Affairs, at EngageWithEOIR@usdoj.gov. When RSVP’ing, indicate whether you intend to participate in person or listen in via webinar/teleconference, and provide the names of the attendees, your organization, and an email address. EOIR will send a confirmation email by August 22 to those who RSVP, including webinar and teleconference information for those who indicate remote participation.

ANNOUNCEMENT

The Nebraska Service Center (NSC) will hold the next monthly stakeholder teleconference on Thursday, August 11, 2016, at 10 a.m. The teleconference will be reserved for non-case-specific issues relating to business immigration. Topics may include premium processing; I-129; I-140; I-360; I-485 EB; I-765 riding with EB I-485; I-131 riding with EB I-485; I-824 as appropriate; and waivers. To be added to the list for call-in information, email Janelle Herres, Community Engagement Officer, NSC, USCIS, ceo.nsc2@uscis.dhs.gov.

The latest E-Verify webinar schedule from USCIS is available HERE.

The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in 30 immigration hotspots around the world.

The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is for:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

An excerpt of the book is on the ABIL website.

The list price is $431, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584

ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS

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8. ABIL Member/Firm News

H. Ronald Klasko and William Stock, of Klasko Immigration Law Partners, have been selected for inclusion in The Most Powerful Employment Attorneys Guide for 2016. The 9^th annual list, selected by Lawdragon and produced in partnership with Human Resource Executive, was recently published on Lawdragon and in HRE’s print magazine. Mr. Klasko and Mr. Stock were named as two of the top 20 practitioners in the area of Immigration Law. Selections were based on Lawdragon’s research and submissions from firms and other visitors to Lawdragon.com and HREonline.com.

Cyrus Mehta has authored several new blog posts. “Don’t Forget Skilled Workers Who May Have to Wait for a Few Centuries Before Getting the Green Card” “Deconstructing the Myth of the Criminal Immigrant” He also co-authored a blog entry with Anand Sinha. “No Longer So Fast! An Examination of EB-1 Retrogression for Indian and Chinese Born Foreign Nationals”

Bernard Wolfsdorf was quoted in CNN Money in “Chinese Flock to America to Work for Companies They for Bought.” The article discusses the recent spike in Chinese expats working in the United States. Mr. Wolfsdorf said, “Chinese companies are investing very heavily in America, and [they are] bringing in key executives and employees.” H. Ronald Klasko was referenced in the same article as noting that in many instances, Chinese firms are choosing to staff up in America with their own people. Commenting on the increase in the percentage of visas granted to Chinese under the investor program, he said, “We expect it will continue to increase.” He noted that investors are piling in now in advance of expected changes to the program.

Mr. Wolfsdorf recently co-authored an article, “An Explanation of the EB-5 Immigrant Visa Backlog for Chinese EB-5 Investors—How Did We Get Here?” The article, which was included in NES Financial’s Navigating a Changing EB-5 Sector, explores the current retrogression for EB-5 investors from China. The co-authors were associates Joseph Barnett and Robert Blanco. Mr. Wolfsdorf also co-authored “Suggested Procedures and Possible Options for Accepting Minors as Investors in EB-5 Investment Funds.” The articles are available by registering HERE.

Stephen Yale-Loehr was quoted by Bloomberg BNA’s Workplace Immigration Report, in “Mayors Urge Party Leaders to Commit to Taking Early Action on Immigration,” on August 1, 2016. Mr. Yale-Loehr said that having both Republican and Democratic mayors sign the letter “sends a powerful message.” However, he noted that “no single letter can overcome the obstacles in enacting comprehensive immigration reform.” He said the mayors “are on the front lines, dealing with immigrants every day.” More such efforts will be needed “to break the political deadlock in Congress on immigration reform,” he noted. The publication is available by subscription HERE. Some articles may be obtained by registering for a free trial (see link under “Recent Headlines”).

Mr. Yale-Loehr was quoted in “EB-5 Visas Surge in Popularity,” published in LasVegasNow.com on July 25, 2016. Commenting on foreign investors’ need to prove the source of their investment funds under the EB-5 program, he said, “When we file these cases, frequently, the source of funds documents may be more than a foot high to try and show they earned their money legally.” He noted that EB-5 investors are vetted very thoroughly, and added, “This is a way immigration can enhance the national economy by creating jobs for U.S. workers at no expense to the taxpayer.” He also observed that the program is “starting to develop backlogs like in all the other categories. It’s incumbent on Congress to enact comprehensive immigration reform, so that we have a working system going forward for everyone.”

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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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. Split Supreme Court Decision Blocks DAPA -In U.S. v. Texas, the Supreme Court let stand lower court rulings that block the Obama administration’s plan to allow approximately 4 million parents of U.S. citizen children to remain in the United States and obtain work authorization.

2. USCIS Celebrates SAVE’s 30th Anniversary, Launches Redesigned Website -SAVE has 1,138 registered agencies with more than 75,000 users.

3. Justice Dept. Settles Immigration-Related Discrimination Claims Against 121 Residency Programs and AACPM -DOJ announced that it reached agreements with 121 podiatry residency programs and the American Association of Colleges of Podiatric Medicine to resolve claims that they discriminated against work-authorized non-U.S. citizens.

4. ABIL Global: Canada -Several developments have been announced.

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

6. ABIL Member/Firm News -ABIL Member/Firm News

7. Government Agency Links -Government Agency Links

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Details:

1. Split Supreme Court Decision Blocks DAPA

In a one-sentence 4-4 split decision on June 24, 2016, U.S. v. Texas, the U.S. Supreme Court let stand lower court rulings that block the Obama administration’s plan, known as Deferred Action for Parents of Americans (DAPA), to allow approximately 4 million parents of U.S. citizen children to remain in the United States and obtain work authorization.

President Barack Obama called the decision “heartbreaking” for those affected by the ruling “who made their lives here, who’ve raised families here, who hope for the opportunity to work, pay taxes, serve in our military, and fully contribute to the country we all love in an open way.” Hillary Clinton, presumptive Democratic presidential nominee, said the ruling threw “millions of families across our country into a state of uncertainty.” She pledged to “introduce comprehensive immigration reform with a path to citizenship within my first 100 days.”

The decision was not expected to lead to any immediate removals due to the Obama administration’s enforcement priorities. Secretary of Homeland Security Jeh Johnson said on June 23, 2016, that he was “disappointed” by the Supreme Court’s ruling. He noted:

It is important to emphasize that this ruling does not affect the existing DACA [Deferred Action for Childhood Arrivals] policy, which was not challenged. Eligible individuals may continue to come forward and request initial grants or renewals of DACA, pursuant to the guidelines established in 2012.

We are also moving forward on the other executive actions the President and I announced in November 2014 to reform our immigration system. This includes our changes to the Department’s immigration enforcement priorities. Through these priorities, we are more sharply focused on the removal of convicted criminals; and threats to public safety and national security, and border security. We have ended the controversial Secure Communities program. We are expanding policies designed to help family members of U.S. citizens and permanent residents stay together when removal would result in extreme hardship. And we are taking several actions to make it easier for international students, entrepreneurs, and high-skilled immigrants to contribute to the U.S. economy.

On the other side, Donald Trump, presumptive Republican presidential nominee, said the decision “blocked one of the most unconstitutional actions ever undertaken by a president.” Ken Paxton, Texas’ Republican Attorney General, said it was “a major setback to President Obama’s attempts to expand executive power, and a victory for those who believe in the separation of powers and the rule of law.”

SUPREME COURT’S DECISION

PRESIDENT OBAMA’S STATEMENTS

SECRETARY JOHNSON’S STATEMENT

MS. CLINTON’S STATEMENT

MR. TRUMP’S STATEMENT

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2. USCIS Celebrates SAVE’s 30th Anniversary, Launches Redesigned Website

On June 23, 2016, U.S. Citizenship and Immigration Services (USCIS) celebrated the 30th anniversary of the Systematic Alien Verification for Entitlements (SAVE) program by redesigning its website, among other things. USCIS noted that SAVE has 1,138 registered agencies with more than 75,000 users.

USCIS said SAVE’s redesigned website includes enhanced graphics, an improved navigation menu, and new search features. The redesign “makes it easier for benefit-granting agencies, prospective agencies and benefit-seeking applicants to learn about the immigration status verification process and services,” USCIS noted. A new “History & Milestones” page outlines SAVE’s enhancements over the years.

USCIS ANNOUNCEMENT

RELATED ANNOUNCEMENT

NEW “HISOTRY & MILESTONES” PAGE

USCIS Director Leon Rodriguez released a new video on YouTube about the SAVE program.

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3. Justice Dept. Settles Immigration-Related Discrimination Claims Against 121 Residency Programs and AACPM

The Department of Justice (DOJ) announced on June 20, 2016, that it reached agreements with 121 podiatry residency programs and the American Association of Colleges of Podiatric Medicine (AACPM) to resolve claims that they discriminated against work-authorized non-U.S. citizens in violation of the Immigration and Nationality Act.

DOJ’s investigations found that between 2013 and 2015, the programs and AACPM created and published discriminatory postings for podiatry residents through AACPM’s online podiatry residency application and matching service. Specifically, DOJ said hundreds of job postings limited podiatry residency positions to U.S. citizens. Several work-authorized non-U.S. citizens stated that they were discouraged or deterred from applying to residency programs because of the citizenship requirements, and the agency concluded that two lawful permanent residents were denied consideration for positions because of unlawful citizenship requirements.

Under the settlement agreements, the programs must remove citizenship requirements from podiatry residency postings except where required by law, train staff involved in the advertising and hiring of podiatric residents, and ensure that future residency postings are reviewed by staff trained in equal employment opportunity laws or by legal counsel. Some of the settlements also require the programs to pay civil penalties from the programs totaling $141,500.

The settlement with AACPM requires it to pay $65,000 in civil penalties, train its staff on the anti-discrimination provision of the INA, and ensure that all participating programs receive such training before they may use AACPM’s online system to advertise residency positions. The settlement also requires AACPM to refund the fees that the charging party paid to use AACPM’s residency application and matching system.

The agency began its investigations of the programs and AACPM in 2015 after receiving a charge against AACPM from a podiatry medical student with lawful permanent residence. The charge alleged that AACPM published a series of podiatry residency job announcements that unlawfully restricted positions to U.S. citizens through AACPM’s online application service. The charge further claimed that AACPM used its online service to collect citizenship status information from residency applicants and share that information with residency programs.

DOJ noted that unless a legal exception applies, jobs may not be advertised as available only to U.S. citizens because doing so excludes other work-authorized individuals, such as U.S. nationals, lawful permanent residents (green card holders), asylees, and refugees.

ANNOUNCEMENT

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4. ABIL Global: Canada

Several developments have been announced.

Many are being caught unprepared by new primary inspection tools. Beginning in November 2015, the Canada Border Services Agency (CBSA) updated its frontline systems so that CBSA officers working the Primary Inspection Line (PIL) at border crossings now have immediate access to the Canadian Police Information Centre (CPIC) database. Previously, these frontline officers only had access to an immigration-related database, and an individual seeking to enter Canada would need to be referred to secondary inspection for an Officer to run his or her information through CPIC.

The introduction of this change has affected the information available to PIL CBSA officers, and has the potential to affect any foreign national who has ever been arrested, charged, or convicted of a crime inside or outside of Canada. In the first month of operation, this procedural change flagged 1,800 cases where travelers were identified as having outstanding warrants against them.

All foreign nationals seeking to enter Canada who have been subject to an arrest, charge, or conviction in or outside of Canada need to proactively consider if they are inadmissible to Canada and be prepared to address any issues, including disclosing their past history. Of importance is the fact that the CPIC information is not always up-to-date, so even if the matter was resolved without a conviction (i.e., dismissed or finding of not guilty), the onus is on the foreign national to satisfy the CBSA officer that he or she is admissible. Depending on the nature of the charge or conviction, these foreign nationals might find that prior incidents render them inadmissible to Canada. Failure to disclose the information on entry can result in a finding of misrepresentation, and could lead to a five-year ban on entering Canada, or refusals of future immigration applications. Even without the CPIC system, it is imperative that a foreign national disclose any past infractions, from driving while impaired to issues of criminality.

There are ways to overcome inadmissibility based on a past criminal activity. These include a discretionary application known as a Temporary Resident Permit or a finding of “deemed rehabilitation,” which can be executed directly at the port of entry, or a more involved application for rehabilitation that typically needs to be filed at a Canadian embassy or consular office outside Canada before entry.

Administrative monetary penalties are introduced for employers failing to comply with rules for foreign workers. Canada has introduced a new system of financial penalties and other consequences for employers found to be non-compliant with the conditions of the Temporary Foreign Worker Program (TFWP) and the International Mobility Program (IMP). New regulations introducing fines known as Administrative Monetary Penalties (AMPs), and bans on hiring foreign workers for whom work permits are required, came into force on December 1, 2015.

The new system takes various factors into consideration, including the nature and severity of the violation, the employer’s compliance history, and the size of the employer. A points system is used to determine the amount of any applicable fines and the length of any applicable bans. In the spirit of encouraging compliance with program conditions, employers are encouraged to voluntarily disclose non-compliance and may receive reduced consequences for doing so, depending on the circumstances.

Therefore, it is particularly important that employers ensure their employees’ working conditions (such as name of employer, work location, occupation, and wage) remain the same as those outlined in the Labour Market Impact Assessment (LMIA) approval letter or, in the case of an LMIA-exempt position, that the name of the employer, work location, and occupation match those outlined in the offer of employment provided to Immigration, Refugees and Citizenship Canada (IRCC), formerly Citizenship and Immigration Canada. Note, however, that IRCC may see a significant change in wages as an indication that the occupation has changed, and additional information establishing that this is not the case could be required.

The potential consequences for employers are significant: up to $1,000,000 in fines and a permanent ban on hiring foreign workers for whom work permits are required. Consequences may be reduced if employers voluntarily disclose non-compliance and provide justification, especially if employers are able to demonstrate that they were proactive in reporting or addressing the discrepancy or violation. Employers are encouraged to take the following steps:

1. Identify all foreign workers in the organization with Canadian work permits.
2. For each foreign worker with an LMIA-based work permit, compare his or her current occupation (job title and duties), wages (including benefits and other compensation), and work location with what was indicated on the LMIA approval letter. Identify any discrepancies and consult with immigration counsel on whether to report these discrepancies to Service Canada as not substantially the same terms as those initially approved.
3. Review each other Canadian employer-specific work permit to determine if the employer, occupation (job title and duties), and work location are consistent with what is listed on the work permit and with what was submitted to IRCC at the time the work permit application was made. Identify any discrepancies and consult with immigration counsel on whether an application to vary and change the work permit should be made.
4. Set up a flag in employment records for all employees holding employer-specific Canadian work permits as a reminder to the human resources team that any changes in wage, occupation, or work location should be reviewed with immigration counsel.
5. Educate human resources personnel and employees with Canadian work permits on the potential implications of changing wages, location of work, or job duties.
6. Consider implementing a workplace harassment policy, harassment awareness training, and a mechanism for employees to report concerns.
7. Take steps to review and ensure compliance with provincial and federal legislation regulating employment and the recruitment of employees.
8. Develop an immigration strategy to transition foreign workers to Canadian permanent residence.
9. Take steps to ensure that payroll and recruiting records for workers holding Canadian work permits are maintained for 6 years.

As of October 26, 2015, employers offering employment to LMIA-exempt foreign nationals must submit compliance information through the new IRCC Employer Portal. The IMM 5802 form (Offer of Employment to a Foreign National Exempt from a Labour Market Impact Assessment (LMIA)) that was in place since February 21, 2015, is no longer accepted. For a foreign worker employed by a non-Canadian company, it is unclear whether the Canadian company receiving the benefit of the work or the foreign worker’s non-Canadian employer is responsible for filing the compliance form and ultimately liable if there is a finding of non-compliance. Recently, IRCC stated that the Canadian company receiving the benefit of the work performed by the foreign worker is responsible for filing the compliance form. Accordingly, the Canadian company will be held liable if there is a finding of non-compliance.

Many Canadian companies are reluctant to assume responsibility for filing the compliance form for their foreign vendors or foreign vendors’ employees. Those that are prepared to file may seek an indemnification from the foreign vendor to mitigate against the foreign vendor’s not keeping payroll records or failing to pay the foreign worker the wage offered at the time the work permit was issued. In other instances, the foreign vendor may be unwilling to provide the Canadian company with details of wages paid to their employees, which are necessary for the Canadian company to file the compliance form. Vendors typically want to avoid the Canadian company’s knowing the foreign vendor’s profit margins. Consequently, this new compliance scheme may have a chilling effect on trade relationships between Canadian and foreign vendors providing services. The foreign national cannot proceed with a work permit application at a port of entry or through a visa office without this compliance requirement first having been completed online.

Given the potential severity of these new penalties, it is imperative that employers provide accurate and complete information on all LMIA and LMIA-exempt applications.

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5. New Publications and Items of Interest

New FAQ on H-2A Form ETA-9142A, Appendix A. The Department of Labor published a FAQ for the H-2A program on the updated Form ETA-9142A, Appendix A. The FAQ is posted as Round 11: June 2016 on the H-2A program page. To directly access the new FAQ, click on the link under June 3.

The latest E-Verify webinar schedule from USCIS is available HERE.

The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in 30 immigration hotspots around the world.

The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is for:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

An excerpt of the book is on the ABIL website.

The list price is $431, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584

ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS

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6. ABIL Member/Firm News

Robert Loughran moderated, wrote the presentation, and co-presented a panel on the immigration and tax consequences of surrendering U.S. citizenship at the Investment Migration Forum’s “Advancing Investor Immigration and Citizenship” conference held June 6-8, 2016, in Geneva, Switzerland. MORE INFORMATION

Mr. Loughran appeared on Fox 7 Austin’s “Good Day” on June 27, 2016, to discuss the impact of the Supreme Court’s 4-4 decision to leave the trial court’s preliminary injunction in place and, in so doing, halt President Obama’s expanded executive action on immigration called Deferred Action for Parents of Americans (DAPA).

Olsa Alikaj-Cano, Senior Attorney with Foster LLP, participated on a panel, “Fundamentals Boot Camp,” on June 22, 2016, at the American Immigration Lawyers Association’s National Convention in Las Vegas, Nevada. The panel explained key immigration terms and concepts; reviewed the various agencies within the Department of Homeland Security and critical distinctions between visas and status; explained visa waivers versus visa-exempt status; and delved into the difference between violating status versus being out of status, including unlawful presence and overstays.

Cyrus Mehta has published several new blog posts. “Trump and the Snake” “Brexit and Xenophobia vs. Immigration and Innovation”

David Isaacson, of Cyrus D. Mehta & Partners PLLC, has published a new blog post. “An Eventful Thursday for Immigration Law at the Supreme Court: United States v. Texas, Mathis v. United States, and What’s Next?”

Angelo Paparelli has published a new blog post. “All Checks But No Balances—The Systemic Failure To Protect EB-5 Investors”

Bernard Wolfsdorf co-authored a new blog post. “Suggested Procedures and Possible Options for Accepting Minors as Investors in EB-5 Investment Funds”

Stephen Yale-Loehr was quoted by Reuters in “Obama Immigration Win At Supreme Court Could Benefit Trump” on June 19, 2016. In the article, which was published before the Supreme Court issued a 4-4 split decision on June 23 in U.S. v. Texas, Mr. Yale-Loehr noted, “To the extent the court has language about the president’s wide authority in immigration law generally, that would certainly strengthen Trump’s hand.” Mr. Yale-Loehr also was quoted in the Houston Chronicle before the decision was issued.

Mr. Yale-Loehr was quoted in various articles after the Supreme Court’s decision was issued:

• U.S. News and World Report
• Financial Times
• Univision
• Law360
• Law360
• Louisville Courier-Journal

Mr. Yale-Loehr was quoted by Vice.com in “Everything You Need to Know About Hillary Clinton’s Immigration Plans,” published on June 28, 2016. Commenting on the Supreme Court’s stalemate on President Obama’s executive actions, he noted, “In terms of executive action [Hillary Clinton] may be more limited as a practical matter. Texas and other states will feel emboldened by today’s decision to try to stop Hillary’s executive action.” The only real solution, he said, is to get Congress to pass these reforms—a dim prospect.

Mr. Yale-Loehr was quoted by the Dallas Morning News in “After Supreme Court Deadlock on Immigration, What’s Next?“, published on June 24, 2016. Commenting on the Supreme Court’s stalemate on President Obama’s executive actions, Mr. Yale-Loehr said, “My prediction is that nothing will happen between now and the presidential election because it will take some time to have a trial on the merits. In the short term, it’s going to be more of the same. The DAPA program stays on hold and the original DACA program still continues.”

Mr. Yale-Loehr was quoted by the New York Times in “Many What-Ifs in Donald Trump’s Plan for Migrants,” published on June 18, 2016. Mr. Yale-Loehr noted, “I can see severe adverse political fallout. Countries could retaliate by limiting travel by U.S. citizens, and it would certainly harm our standing in terms of international initiatives negotiating trade deals and stopping wars.”

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7. Government Agency Links

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

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any po

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Headlines:

1. USCIS, DOS Launch e-Approval for H-2A Petitions -USCIS and DOS announced the launch of e-Approval for Form I-129, Petition for a Nonimmigrant Worker, for the H-2A (temporary agricultural worker) classification.

2. USCIS Will Now Use Pre-Paid Mailers To Send H-2A Receipt Notices -Coinciding with the launch of e-Approval, USCIS has begun using pre-paid mailers provided by petitioners to send out receipt notices for H-2A (temporary agricultural worker) petitions.

3. Employers May Submit Inquiries If Extension of Status/Change of Employer Petitions Have Been Pending for 210 Days or More -USCIS recently began allowing petitioners who filed Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of status or change of employer to submit an inquiry after their petition has been pending for 210 days or more.

4. DHS Extends TPS for Nicaragua and Honduras -DHS has extended TPS for eligible nationals of Nicaragua and Honduras (and those without nationality who last habitually resided in one of those two countries) for an additional 18 months, through January 5, 2018. The 60-day re-registration period runs through July 15, 2016.

5. USCIS Reaches H-2B Cap for FY 2016 -May 12, 2016, was the final receipt date for new H-2B worker petitions requesting an employment start date before October 1, 2016.

6. USCIS Reaches CW-1 Cap for FY 2016 -May 5, 2016, was the final receipt date for CW-1 (CNMI-Only Transitional Worker) petitions requesting an employment start date before October 1, 2016.

7. USCIS Launches Optional Forms Checklist Pilot for Employment Authorization Application -The checklist identifies what documents need to be included in the initial filing and the important items needed to complete the form, such as a signature.

8. OSC Launches Submission of Charge Forms Online -Anyone who alleges that he or she is a victim of discrimination or an authorized person on behalf of the victim can now submit a charge form online within 180 days of the alleged date of discrimination.

9. ABIL Global: Belgium -This article summarizes details on work permit requirements and exemptions for foreign employees in Belgium.

10. New Publications and Items of Interest -New Publications and Items of Interest

11. ABIL Member/Firm News -ABIL Member/Firm News

12. Government Agency Links –Government Agency Links

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Details:

1. USCIS, DOS Launch e-Approval for H-2A Petitions

U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) recently announced the launch of e-Approval for Form I-129, Petition for a Nonimmigrant Worker, for the H-2A (temporary agricultural worker) classification. This new electronic process, begun on May 16, 2016, allows USCIS to send approval information for H-2A petitions to DOS by the end of the next business day. DOS will accept this electronic information in place of a Form I-797 approval notice and allow its consular posts to proceed with processing an H-2A nonimmigrant visa application, including conducting any required interview.

USCIS will continue the current practice of updating My Case Status online upon approving a case and mailing approval notices to petitioners. Employers will not be charged any additional fees for the USCIS/DOS e-Approval process.

USCIS said the goals of the USCIS/DOS e-Approval process are to:

• Reduce delays for U.S. employers that wish to employ H-2A agricultural workers;
• Reduce the amount of paperwork between USCIS and DOS;
• Replace the current paper-based USCIS/DOS notification process with an electronic process that will make the visa process more efficient for applicants; and
• Provide greater efficiency and consistency in transmitting information to DOS consular posts.

USCIS ANNOUNCEMENT

MY CASE STATUS

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2. USCIS Will Now Use Pre-Paid Mailers To Send H-2A Receipt Notices

Coinciding with the launch of e-Approval, U.S. Citizenship and Immigration Services (USCIS) has begun using pre-paid mailers provided by petitioners to send out receipt notices for H-2A (temporary agricultural worker) petitions. USCIS said this is a change from standard processing at USCIS service centers, which normally use pre-paid mailers only for final decision notices.

Under this change, H-2A petitioners may now submit two pre-paid mailers if they want to expedite delivery of both the receipt notice and the final decision notice. Any submitted pre-paid mailers for H-2A petitions must still meet the same requirements for their use with other forms and classifications.

Until further notice, USCIS will:

• Use any pre-paid mailer provided by an H-2A petitioner primarily to send the receipt notice.
• Send the final decision notice (such as a Notice of Approval or Notice of Denial) in a pre-paid mailer only if the H-2A petitioner provided a second pre-paid mailer.
• Continue to send all other notices regarding an H-2A petition, including any Requests for Evidence, by regular U.S. mail.

USCIS said it revised how it processes pre-paid mailers for H-2A petitions “in recognition of stakeholder interest in expediting the delivery of receipt notices for this very time-sensitive classification.” This change is limited to H-2A petitions.

USCIS ANNOUNCEMENT

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3. Employers May Submit Inquiries If Extension of Status/Change of Employer Petitions Have Been Pending for 210 Days or More

U.S. Citizenship and Immigration Services (USCIS) recently began allowing petitioners who filed Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of status or change of employer to submit an inquiry after their petition has been pending for 210 days or more. This inquiry may be based on the petition being outside of normal processing times.

Employers whose I-129 petitions have been pending for at least 210 days may submit inquiries by calling the National Customer Service Center at 1-800-375-5283 (TDD for hearing-impaired: 1-800-767-1833). Those asking about case status should provide the original receipt number and specify that the case has been pending for 210 days or more.

ANNOUNCEMENT

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4. DHS Extends TPS for Nicaragua and Honduras

The Department of Homeland Security has extended temporary protected status (TPS) for eligible nationals of Nicaragua and Honduras (and those without nationality who last habitually resided in one of those two countries) for an additional 18 months, effective July 6, 2016, through January 5, 2018.

Current Nicaraguan and Honduran TPS beneficiaries who want to extend their TPS must re-register during the 60-day re-registration period that began May 16, 2016, and runs through July 15, 2016. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible.

The 18-month extension allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Those who re-register during the 60-day period and request a new EAD will receive one with an expiration date of January 5, 2018. USCIS said it recognizes that some re-registrants may not receive their new EADs until after their current work permits expire. Therefore, USCIS is automatically extending current TPS Nicaragua EADs with a July 5, 2016, expiration date for six months. These existing EADs are now valid through January 5, 2017.

To re-register, current TPS beneficiaries must submit:

• Form I-821, Application for Temporary Protected Status (re-registrants do not need to pay the Form I-821 application fee);
• Form I-765, Application for Employment Authorization, regardless of whether they want an EAD;
• The Form I-765 application fee (or a fee-waiver request) only if they want an EAD. If the re-registrant does not want an EAD, no application fee is required; and
• The biometric services fee (or a fee-waiver request) if they are age 14 or older.

USCIS noted that it is transitioning to process Nicaraguan TPS applications electronically (the announcements do not mention electronic processing with respect to Honduran TPS applications). However, applicants must continue to complete the paper forms and submit them by mail. Once USCIS receives the documents, the agency will scan them in for processing. Nicaraguan applicants with properly filed submissions will receive a USCIS Account Acceptance Notice in the mail with instructions on how to create a USCIS online account. USCIS will still process TPS Nicaragua applications even if applicants choose not to access their online account. The agency will also send copies of case notifications via the U.S. Postal Service.

TPS ANNOUNCEMENT FOR NICARAGUA

TPS ANNOUNCEMENT FOR HONDURAS

RELATED FEDERAL REGISTER NOTICE FOR NICARAGUA

RELATED FEDERAL REGISTER NOTICE FOR HONDURAS

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5. USCIS Reaches H-2B Cap for FY 2016

U.S. Citizenship and Immigration Services (USCIS) recently announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for fiscal year (FY) 2016. May 12, 2016, was the final receipt date for new H-2B worker petitions requesting an employment start date before October 1, 2016.

USCIS said that except as noted below, the agency will reject new H-2B petitions received after May 12, 2016, that request an employment start date before October 1, 2016.

The agency will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes the following types of petitions:

• For FY 2016 only, workers certified and confirmed as “returning workers” who were previously counted against the annual H-2B cap during FYs 2013, 2014, or 2015;
• Current H-2B workers in the U.S. petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
• Fish roe processors, fish roe technicians, and supervisors of fish roe processing; and
• Workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of the Northern Mariana Islands or Guam.

USCIS said it will consider H-2B petitions requesting an employment start date on or after October 1, 2016, toward the FY 2017 H-2B cap. These petitions will be subject to all eligibility requirements for FY 2017 H-2B cap filings.

To avoid processing delays, petitioners who are including H-2B returning workers on their petitions must complete and include the H-2B Returning Worker Certification and are encouraged to write “H-2B Returning Workers” prominently on the envelope and any cover page. MORE INFORMATION. ADDITIONAL H-2B CAP INFORMATION.

USCIS ANNOUNCEMENT

FOR MORE INFORMATION ABOUT THE H-2B WORK PROGRAM

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6. USCIS Reaches CW-1 Cap for FY 2016

U.S. Citizenship and Immigration Services (USCIS) announced on May 19, 2016, that it has received a sufficient number of petitions to reach the numerical limit, or cap, of 12,999 workers who may be issued CW-1 visas or otherwise provided with CW-1 status for fiscal year (FY) 2016. May 5, 2016 was the final receipt date for CW-1 worker petitions requesting an employment start date before October 1, 2016.

The CNMI-Only Transitional Worker (CW) visa classification allows employers in the Commonwealth of the Northern Mariana Islands (CNMI) to apply for temporary permission to employ foreign nonimmigrant workers who are otherwise ineligible to work under other nonimmigrant worker categories. The CW classification provides a method for transition from the former CNMI foreign worker permit system to the U.S. immigration system.

USCIS said it will reject CW-1 petitions that were received after May 5, 2016, and that request an employment start date before October 1, 2016. This includes CW-1 petitions for extensions of stay that are subject to the CW-1 cap. The filing fees will be returned with any rejected CW-1 petition.

If an extension petition is rejected, the beneficiaries listed on that petition are not permitted to work beyond the validity period of the previously approved petition. Therefore, affected beneficiaries, including any CW-2 derivative family members of a CW-1 nonimmigrant, must depart the CNMI within 10 days after the CW-1 validity period has expired, unless they have some other authorization to remain under U.S. immigration law.

Form I-129CW petitions that are generally subject to the CW-1 cap include new employment petitions and extension of stay petitions. All CW-1 workers are subject to the cap unless the worker has already been counted toward the cap in the same fiscal year. The CW-1 cap does not apply to CW-2 dependents.

USCIS said it encourages CW-1 employers to file a petition for a CW-1 nonimmigrant worker up to 6 months in advance of the requested employment start date, and to file as early as possible within that time frame. However, USCIS will reject a petition if it is filed more than 6 months in advance.

USCIS is currently accepting CW-1 petitions requesting employment start dates on or after October 1, 2016 (which apply to the FY 2017 CW-1 cap).

USCIS ANNOUNCEMENT

MORE INFORMATION ABOUT CW-1 WORK PROGRAM

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7. USCIS Launches Optional Forms Checklist Pilot for Employment Authorization Application

U.S. Citizenship and Immigration Services (USCIS) has launched a pilot study to offer an optional checklist for the submission of Form I-765, Application for Employment Authorization. The checklist identifies what documents need to be included in the initial filing and the important items needed to complete the form, such as a signature.

The pilot study is specific to applicants who have filed for adjustment of status. USCIS said it will use the results of the study to determine whether the agency will expand the availability of optional checklists for other USCIS forms where a checklist is not currently available. USCIS notes that the checklist does not replace or change the form instructions and statutory or regulatory requirements.

USCIS is conducting a similar pilot study with Form I-129F, Petition for Alien Fiancé(e).

USCIS ANNOUNCEMENT

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8. OSC Launches Submission of Charge Forms Online

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently announced that members of the public can now complete and submit charge forms online through OSC’s website, in addition to the methods currently available (mail, fax, or email).

Anyone who alleges that he or she is a victim of discrimination or an authorized person on behalf of the victim can submit a charge form within 180 days of the alleged date of discrimination. Grounds under U.S. immigration law may include discrimination on the basis of citizenship status, national origin, document abuse, or retaliation.

ONLINE FORM (English)

ONLINE FORM (Spanish)

OSC said it will add more languages “in the near future.”

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9. ABIL Global: Belgium

Below is a summary of details on some work permit exemptions, related to technical work, for foreign employees in Belgium.

In principle, any employment in Belgium of a foreign employee requires a work permit, unless an exemption applies.

Several activities are considered business visitors’ activities, which do not trigger a work permit requirement, such as technical activities like initial assembly or first installation of a product. Such a service is defined as: (i) an essential part of a sales/supply agreement; (ii) necessary for the use of the product; and (iii) provided by qualified and/or specialized employees of the supplier. Work in the construction/building industry is excluded.

Official comments from the authorities refer to the following example:

An American company sells a highly technological printing press to a Belgian printing company. The company sends two technicians. They have to install the printing press, adjust it, and provide the Belgian client’s personnel with a training course. All of this takes 5 days. This American company and its employees are exempt.

The work permit exemption only applies to employees who are posted/assigned to Belgium, and the work cannot take longer than 8 days. There is no salary requirement.

Another business visitor activity is urgent maintenance of and repair work on a product. The scope of this work by specialized technical workers is the performing of urgent maintenance of and repair work on goods supplied by the foreign employer to a Belgian customer. The regulations explicitly confirm that IT work falls under the scope of this work permit exemption.

Official comments from the authorities refer to the following example:

The air-conditioning in a Belgian company is defective. The company contacts the supplier in…, who sends out a technician. After half a day the technical problem is solved. The … employer/supplier is exempt from the declaration.

This exemption only applies to employees who are posted/assigned to Belgium, and the employee cannot work more than 5 days per month in Belgium. The remuneration of the employee must be at least equal to the Belgian minimum wage.

The employer who invokes a work permit exemption must be able to prove that the conditions for the exemption are met (such as in the event of audit by social inspection services). There are specific rules regarding the minimum initial documentation required:

• For initial assembly and/or first installation of a product: a sworn statement by the employer and a copy of the supply contract;
• For urgent maintenance of and repair work on a product: a sworn statement by the employer and a statement by the client regarding the urgency of the work.

In the event of an audit, the social inspection services can “overrule” the employer’s sworn statement: they can opine on the basis of the facts that the work permit exemption does not apply. This could result in civil or criminal proceedings.

As a general requirement, to be able to invoke a work permit exemption, the employees must be legally residing in Belgium. Unless the employees reside in a hotel, they must make a declaration of arrival with the municipal authorities of the town where they will reside within three working days of arrival.

Legal residence in Belgium for visa waiver citizens implies that the employees have not yet resided in the Schengen area more than 90 days in any 180-day period. Furthermore, these employees must hold a travel document that (i) is valid “at least 3 months after the intended date of departure from the territory of the Member States” (this requirement may be waived in “a justified case of emergency”), and (ii) has “been issued within the previous 10 years.”

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10. New Publications and Items of Interest

A new Web page on the H-1B and L-1 fee increases required by the Consolidated Appropriations Act, 2016, provides information about the fees and who must pay them. The new law requires certain petitioners to submit an additional fee of $4,000 for certain H-1B petitions and an additional $4,500 for certain L-1A and L-1B petitions. USCIS said this posting is in response to stakeholder comments and questions about a previously issued Web alert.

The latest E-Verify webinar schedule from USCIS is available HERE.

The latest edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in 30 immigration hotspots around the world.

The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, Russia, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is for:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

An excerpt of the book is on the ABIL website.

The list price is $431, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584

ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS

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11. ABIL Member/Firm News

The following ABIL members will speak at the American Immigration Lawyers Association’s Annual Conference in Las Vegas, Nevada, on June 22-25, 2016:

“Caveat Emptor: The Ethics of Choosing and Working with Service Vendors Roundtable”

Cyrus Mehta

Rami Fakhoury

“Creative Strategies for Dependents Roundtable”

Elise A. Fialkowski (H. Ronald Klasko‘s partner)

“Researchers Don’t Always Wear Lab Coats: Taking Advantage of Special Provisions for Researchers Roundtable”

Robert Aronson (Laura Danielson‘s partner) (discussion leader)

“Hot Topics with the AILA National Officers”

William Stock (Mr. Klasko’s partner)

” ‘Challenging’ Prevailing Wage Issues”

Vincent Lau (discussion leader)

Sharon Mehlman

“Mission Impossible: Managing Your Staff and Non-Staff”

Charles Kuck

“AILA Ethics Compendium Live Roundtable”

Mr. Mehta (discussion leader)

“Employment-Based Immigration: The Preference Categories”

Stephen Yale-Loehr (discussion leader)

“What Every U.S. Immigration Lawyer Should Know About Outbound Business and Employment Visas Roundtable”

Laura Devine

“Establishing the Employer-Employee Relationship in NIV Third-Party Placements Roundtable”

Cora-Ann Pestaina (Mr. Mehta’s partner)

“Winning at the Consular Game”

Kehrela Hodkinson

“EB-5 Nuts and Bolts”

Bernard Wolfsdorf (discussion leader)

“Complexities and Issues in Dealing with EB-5 Regional Centers”

Carolyn Lee (Mr. Yale-Loehr’s partner)

Angelo Paparelli

“Advanced Issues in EB-5 Investment Practice”

Mr. Klasko (discussion leader)

Ms. Danielson

“Ethical Issues in an Evolving World”

Greg Siskind (Lynn Susser‘s partner)

“When Can You Use the H-2B and H-2A Visas: Don’t Leave Them Out on the Range”

Loan Huynh (Ms. Danielson’s partner) (discussion leader)

EB5 Investors Magazine has released its list of top attorneys who represent EB-5 immigrant investors, project developers, and regional centers. Several ABIL members and related attorneys are included:

• Charles Foster (Partner, Foster LLP)
• Rohit Kapuria (Resident Attorney, Klasko Immigration Law Partners, LLP’s Chicago office)
• Klasko
• Carolyn Lee (Partner, Miller Mayer’s Immigration practice group)
• Daniel Lundy (Partner, Klasko Immigration Law Partners, LLP)
• Paparelli
• Christian Triantaphyllis (Associate Attorney, Foster LLP)
• Greg White (Partner, Seyfarth Shaw LLP)
• Wolfsdorf
• Yale-Loehr

Mark Ivener recently co-authored an article, “International Investors & California: EB-5 Visas/California Taxes,” which was published on May 11, 2016, in California CEO Business News & Information.

Robert Loughran was quoted in Law360 on May 20, 2016, in “E-Verify May Be More Trouble Than Ease for Some Employers.” Commenting on the staffing consequences for employers of E-Verify, he noted, “In times of low unemployment, they keep on getting tentative nonconfirmations [in E-Verify], and they can’t get workers. So, they have open positions that they can’t fill.”

Raquel Burson, an attorney with Foster LLP, was quoted in Law360 on May 26, 2016, in “4 Things To Know About Travel for the Rio Olympics.” Noting that people arriving on work visas may face delays when trying to complete their required registrations with the Brazilian police, she said, “We are already telling our clients that we expect that the federal police will concentrate their efforts to provide assistance…at the airports and for security of the country during the Olympic Games.”

Mr. Mehta has published two new blog entries. “The B-1 Visa: Trap for the Tailor, Bricklayer and Tesla Motors” “USA v. Olivar: Conspiracy To Commit Acts Prior To Naturalization Can Still Result In Revocation Of Citizenship”

Mr. Yale-Loehr will speak at two events on June 10, 2016, as part of the Cornell University reunion:

• 11 am to noon: Lawyers in the Best Sense: Social Justice, Human Rights, and Legal Access. Members of the Cornell Law School faculty will discuss activities and initiatives based at Cornell Law School on human rights, social justice, and legal access around the globe.
• 1-2 pm: Panel discussion on Immigration, Migration, and Refugees, including the U.S. immigration and refugee systems, current problems, and what the Congress and the next president can do to fix them.

Both events will be live streamed.

Mr. Yale-Loehr spoke on “Our Broken Immigration System and How To Fix It” at the Cazenovia Forum on Friday, June 3, 2016, in Cazenovia, New York. An article about the presentation.

Mr. Yale-Loehr was quoted in an article in Law360 about Torres v. Lynch, decided by the Supreme Court on May 19, 2016.

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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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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