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News from the Alliance of Business Immigration Lawyers Vol. 5, No. 9B • September 15, 2009

September 15, 2009/in Immigration Insider /by ABIL

Headlines:

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

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

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

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

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

6. Government Agency Links – Government Agency Links


Details:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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4. USCIS Proposes Nonimmigrant Investor Visa Classification for Northern Marianas

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

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

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

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5. Recent News from ABIL Members

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

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

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6. Government Agency Links

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

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

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

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

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https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2009-09-15 00:00:032019-09-17 19:08:13News from the Alliance of Business Immigration Lawyers Vol. 5, No. 9B • September 15, 2009

News from the Alliance of Business Immigration Lawyers Vol. 5, No. 9A • September 01, 2009

September 01, 2009/in Immigration Insider /by ABIL

Headlines:

1. DHS Proposes To Rescind Social Security No-Match Rule; SEVIS Data To Be Integrated Into E-Verify – DHS has proposed to rescind amendments relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters.

2. OMB Extends I-9 Approval to August 31, 2012 – Employers may use the I-9 with a revision date of either August 7, 2009, or February 2, 2009.

3. Seventh Circuit Affirms Time Limits on Labor Certifications – The U.S. Court of Appeals for the Seventh Circuit affirmed a Department of Labor amended regulation setting time limits on grants of labor certification.

4. Employment-Based Fourth Preference Categories Unavailable for September – The employment fourth preference is expected to return to “Current” status in October, the first month of the new fiscal year.

5. USCIS Clarifies Regulatory Requirements for Filing H-2B Petitions by Certain Associations and Their Members – USCIS said it has noticed a particular type of filing error, involving “master” petitions, in many H-2B petitions filed by certain associations on behalf of their members.

6. DHS Announces New Directives on Border Searches of Electronic Media – DHS announced new directives to enhance and clarify oversight of computer and other electronic media searches at U.S. ports of entry.

7. International Educators Ask President To Restore Academic Travel To Cuba – The letter cites the benefits of academic exchanges and notes that opportunities for Americans to study abroad in Cuba have declined precipitously.

8. Congress Examines Foreign Investment, Verification, Real ID Issues At Recent Hearings – The EB-5 Immigrant Investor Regional Center Program is set to expire at the end of September; Sen. Leahy said that making the program permanent “is a critical first step to its continuing success.”

9. ABIL GLOBAL: Belgian Corporate Immigration Update – Among other things, a social security agreement between Belgium and India took effect on September 1, 2009.

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

11. Government Agency Links – Government Agency Links


Details:

1. DHS Proposes To Rescind Social Security No-Match Rule; SEVIS Data To Be Integrated Into E-Verify

On August 19, 2009, the Department of Homeland Security (DHS) proposed to rescind the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters. The U.S. District Court for the Northern District of California had enjoined implementation of the 2007 final rule on October 10, 2007. After further review, DHS said it plans to focus its enforcement efforts relating to the employment of unauthorized workers on increased compliance through improved verification, including participation in E-Verify, the ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.

DHS noted that in fiscal year 2010, U.S. Citizenship and Immigration Services plans to improve the E-Verify system’s ability to automatically verify international students and exchange visitors through the incorporation of ICE’s Student and Exchange Visitors Information System (SEVIS) data into E-Verify. By incorporating SEVIS nonimmigrant student visa data into the automatic initial E-Verify check, the number of students and exchange visitors who receive initial mismatches should be reduced, DHS said. In 2010, ICE will launch a new version of SEVIS (SEVIS II), which will include employment eligibility information that E-Verify will be able to access electronically. Currently, the SEVIS database is checked manually by immigration status verifiers after an initial mismatch occurs.

DHS’s proposed rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-19826.pdf.

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2. OMB Extends I-9 Approval to August 31, 2012

U.S. Citizenship and Immigration Services (USCIS) announced on August 27, 2009, that the Office of Management and Budget has extended its approval of Form I-9 (Employment Eligibility Verification Form) to August 31, 2012. Consequently, USCIS has amended the form to reflect a new revision date of August 7, 2009.

Employers may use the I-9 with a revision date of either August 7, 2009, or February 2, 2009. The revision dates are located on the bottom right-hand portion of the form.

The announcement is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/August%202009/update_I-9_extension0827.pdf.

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3. Seventh Circuit Affirms Time Limits on Labor Certifications

The U.S. Court of Appeals for the Seventh Circuit affirmed a Department of Labor amended regulation setting time limits on grants of labor certification. Specifically, the amended regulation states that an approved permanent labor certification granted on or after July 16, 2007, expires if not filed in support of an I-140 petition within 180 calendar days of the date the Department granted the certification, and that an approved permanent labor certification granted before July 16, 2007, expires if not filed in support of an I-140 petition within 180 calendar days of July 16, 2007.

Between March 2001 and May 2007, 14 unaffiliated Illinois businesses filed applications for labor certification on behalf of 15 potential employees. Thirteen were approved before the amended regulation took effect on July 16, 2007; the other two were approved after that date. After the Department of Homeland Security rejected eight of the workers’ visa petitions because of expired labor certifications, the 14 businesses and 15 workers sued the Departments of Labor and Homeland Security. Among other things, the plaintiffs sought a judgment that the Department of Labor’s promulgation of the amended regulation was beyond its authority or, alternatively, that retroactive application of the amended regulation was unlawful. The eight workers also sought a writ of mandamus against the Department of Homeland Security to compel the agency to process their visa petitions.

The Seventh Circuit ruled in favor of the government, noting among other things that when the Department of Labor amended its regulation to establish a 180-day time limit for previously approved labor certifications, the plaintiffs’ right to the certifications’ indefinite validity ended, and the plaintiffs did not possess any vested right that the amended regulation could impair.

The case is available at http://adnet-nyc.com/Article/durable.pdf.

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4. Employment-Based Fourth Preference Categories Unavailable for September

The Department of State’s Visa Bulletin for September notes that heavy applicant demand for green card numbers in the employment fourth, and employment fourth “Certain Religious Worker,” categories has resulted in their becoming “Unavailable” for September. This unavailable status took effect immediately in August because the annual limit for those categories was reached. Therefore, the Department said, no further requests for numbers in those categories can be processed during fiscal year 2009.

The employment fourth preference is expected to return to “Current” status in October, the first month of the new fiscal year. The employment fourth “Certain Religious Workers” category is scheduled to expire on September 30, 2009, and future availability will depend on legislative action.

The latest Visa bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4558.html.

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5. USCIS Clarifies Regulatory Requirements for Filing H-2B Petitions by Certain Associations and Their Members

U.S. Citizenship and Immigration Services (USCIS) issued a clarification on August 28, 2009, to associations and their members of certain regulatory requirements for filing petitions for H-2B classification on behalf of foreign workers. USCIS said it has noticed a particular type of filing error in many H-2B petitions filed by certain associations on behalf of their members. Rather than filing an individual petition with USCIS, some employers who are members of an association have sought H-2B non-agricultural workers via a “master” petition filed by their association.

USCIS noted that a “master” petition is a petition that:

  • Is filed by an association (listing the association as petitioner) on behalf of several of its member-employers; and
  • Includes multiple temporary labor certifications that have been issued by the Department of Labor (DOL) for each individual member-employer, rather than a single temporary labor certification certified for the particular association itself as an employer or “joint employer.”

USCIS said it recognizes that the facts of each case may be different, but that association member-employers generally should file a petition for H-2B classification directly and separately (listing themselves as the petitioner) with USCIS, rather than through a “master” petition filed by an association (listing the association as the petitioner) on behalf of several of its members. Petitions filed by associations that fail to meet the petitioner requirements for H-2B classification will be denied, USCIS warned.

The clarification, which includes discussion and analysis of the reasons why H-2B petitions filed by associations on behalf of their employer members generally would not qualify for H-2B classification, is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/August%202009/h2b-filed-by-associations.pdf.

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6. DHS Announces New Directives on Border Searches of Electronic Media

On August 27, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano announced new directives to enhance and clarify oversight of computer and other electronic media searches at U.S. ports of entry. The new directives address the circumstances under which U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) can conduct border searches of electronic media consistent with the Department’s authority to search other sensitive non-electronic materials, such as briefcases, backpacks and notebooks, at U.S. borders.

DHS said the new directives will also allow the agency “to develop automated, comprehensive data collection and analytic tools to facilitate accurate, thorough reporting on electronic media searched at the border, the outcomes of those searches and the nature of the data searched.”

Between October 1, 2008, and August 11, 2009, CBP encountered more than 221 million travelers at U.S. ports of entry. Approximately 1,000 laptop searches were performed during that time. Of those, 46 were “in-depth.”

Among other things, related CBP guidance issued on August 20, 2009, notes:

Officers may encounter materials that appear to be legal in nature, or an individual may assert that certain information is protected by attorney-client or attorney work product privilege. Legal materials are not necessarily exempt from a border search, but they may be subject to the following special handling procedures: If an Officer suspects that the content of such a material may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the Officer must seek advice from the CBP Associate/Assistant Chief Counsel before conducting a search of the material, and this consultation shall be noted in appropriate CBP systems of records. CBP counsel will coordinate with the U.S. Attorney’s Office as appropriate.

Other possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy.

Officers encountering business or commercial information in electronic devices shall treat such information as business confidential information and shall protect thatinformation from unauthorized disclosure. Depending on the nature of the information presented, the Trade Secrets Act, the Privacy Act, and other laws, as well as CBPpolicies, may govern or restrict the handling of the information. Any questions regarding the handling of business or commercial information may be directed to the CBPAssociate/Assistant Chief Counsel.

Information that is determined to be protected by law as privileged or sensitive will only be shared with federal agencies that have mechanisms in place to protectappropriately such information.

The CBP guidance also notes that an officer at the border may “detain” electronic devices or copies of information contained in them for “a reasonable period of time to perform a thorough border search,” which may take place either on-site or at another location. The guidance states that unless extenuating circumstances exist, the detention of such devices ordinarily should not exceed five days and should be completed “as expeditiously as possible.” Supervisory approval is required for detaining electronic devices, or copies of information contained in them, for continuation of a border search after an individual’s departure. Port Director, Patrol Agent in Charge, or other equivalent level manager approval is required to extend any such detention beyond five days.

The DHS notice and CBP guidance are available at http://www.aila.org/content/default.aspx?docid=29899.

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7. International Educators Ask President To Restore Academic Travel To Cuba

NAFSA: Association of International Educators, along with a group of 17 organizations, sent a letter on July 22, 2009, to President Obama urging him to remove restrictions on academic travel to Cuba. The letter cites the benefits of academic exchanges and notes that opportunities for Americans to study abroad in Cuba have declined precipitously since the Bush administration imposed restrictions on academic travel to Cuba in 2004. NAFSA noted that 220 American college students studied in Cuba during the 2006-2007 academic year; three years earlier, 10 times as many students had done so. The letter also supports granting U.S. visas to Cubans coming to the U.S. for exchange purposes, and a policy favoring academic, cultural, religious, sports, and professional visits. The letter further urges Cuban authorities to grant exit visas for students and scholars accepted by U.S. academic institutions.

The letter is available at http://www.nafsa.org/_/File/_/POTUS_Cuba_July_09.pdf.

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8. Congress Examines Foreign Investment, Verification, Real ID Issues At Recent Hearings

The Senate and House recently held hearings on various employment-based immigration issues:

  • The Senate Judiciary Committee held a hearing on July 22, 2009, “Promoting Job Creation and Foreign Investment in the United States: An Assessment of the EB-5 Regional Center Program.” Sen. Patrick Leahy (D-Vt.) noted in his opening statement that the EB-5 Immigrant Investor Regional Center Program is set to expire at the end of September, and that making the program permanent “is a critical first step to its continuing success.” Sen. Leahy noted that the program “has been responsible for the investment of hundreds of millions of dollars, and the creation of tens of thousands of jobs in American communities since 1993. The program has paved the way for ski resort expansion in Vermont, dairy operations in Iowa, energy development in Oklahoma and Texas, and the manufacture of hurricane-resistant housing in Alabama. These are just a few examples of projects financed by foreign investment through the Regional Center program, and all indications are that interest in the program is growing.” Witnesses at the hearing included Michael Dougherty, Robert Kruszka, Alliance of Business Immigration Lawyers member Stephen Yale-Loehr, William Stenger, and Ron Drinkard. Their testimony, and Sen. Leahy’s statement, are available at http://judiciary.senate.gov/hearings/hearing.cfm?id=3998.
  • The Senate Judiciary Committee held a hearing on July 20, 2009, “Time Change – Ensuring a Legal Workforce: What Changes Should Be Made To Our Current Employment Verification System?” Sen. Russ Feingold (D-Wis.) said in his opening statement that he is concerned about recent efforts to make E-Verify mandatory and to expand its use to federal contractors “without first fixing the current problems with the system.” He noted that according to a 2006 report by the Social Security Administration’s Inspector General, “the data set on which E-Verify relied contains errors in 17.8 million records, affecting 12.7 million U.S. citizens. If E-Verify becomes mandatory before these errors are fixed, millions of Americans could be misidentified as unauthorized to work.” Witnesses at the hearing included Rep. Luis Gutierrez, Michael Aytes, James Ziglar, and Lynden Melmed. Their testimony, and Sen. Feingold’s statement, are available at http://judiciary.senate.gov/hearings/hearing.cfm?id=3982.
  • The Senate Committee on Homeland Security and Governmental Affairs held a hearing on July 15, 2009, “Identification Security: Reevaluating the Real ID Act.” Witnesses at the hearing included Janet Napolitano, Jim Douglas, Stewart Baker, Leroy Baca, David Quam, and Ari Schwartz. Their testimony, and committee member statements, are available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=3d9a52cd-c442-4dee-9a1f-b02ed3b38000.

The House of Representatives’ Committee on Oversight and Government Reform held a hearing on July 23, 2009, “E-Verify: Challenges and Opportunities.” Witnesses at the hearing included Angelo Amador, David Rust, Gerri Ratliff, and Jena Baker McNeill. Their testimony is available at http://governmentmanagement.oversight.house.gov/story.asp?ID=2552.

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9. ABIL GLOBAL: Belgian Corporate Immigration Update

The Belgian regulations regarding corporate immigration have been updated on a regular basis since 2007.

The Belgian regulations are influenced by European Union (EU) legislation. Citizens from almost all EU/European Economic Area (EEA) Member States (Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and the United Kingdom), as well as some of their family members, can now work in Belgium without a work permit on the basis of their citizenship. However, this does not apply to Bulgaria and Romania, which joined the EU on January 1, 2007. Nationals of those two countries still need to obtain a work permit to work in Belgium until December 31, 2011. Until that time, Bulgarian and Romanian citizens can gain easier access to the Belgian labor market if they work in a “labor shortage profession.”

The changes to corporate immigration legislation also reflect the need to meet business needs. For instance, if a foreign employee can be considered to be key personnel or, effective from May 29, 2009, executive-level personnel employed by Belgian headquarters of a multinational company or of a group of companies, he or she will not need a work permit, provided that he or she earns at least 59.460 EUR (amount for 2009) gross on a yearly basis. To qualify as Belgian headquarters, several conditions, linked to tax and corporate law, must be met. This exemption is not limited in time.

Social security is an important aspect of corporate immigration. Belgium has been quite active over the past few years in negotiating and entering into bilateral social security agreements with several countries. One of these countries is India. Belgium and India reached a bilateral agreement on social security on November 3, 2006. The “Agreement of Social Security between the Kingdom of Belgium and the Republic of India” was approved by the Act of February 12, 2009, and was published in the Belgian State Gazette on August 21, 2009. The agreement, which took effect on September 1, 2009, allows a Belgian or Indian employee (i) who is employed by a Belgian or Indian employer, (ii) who pays contributions under the Belgian or Indian legislation, and (iii) who is posted to India or Belgium, to remain subject to the Belgian or Indian legislation regarding social security for employees, provided that the foreseeable duration of the work does not exceed, in principle, 60 months.

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10. Recent News from ABIL Members

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in an article about EB-5 investors published August 13, 2009, in the Christian Science Monitor. The article notes that foreign entrepreneurs with at least $500,000 to invest in a designated “regional center” can get a green card in months rather than years. Mr. Yale-Loehr noted that “[f]or certain countries like China and India, we have long green card
backlogs in most categories – but not in the EB-5 category.” The article is available at http://features.csmonitor.com/economyrebuild/2009/08/13/want-a-us-green-card-bring-cash/.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was quoted in the New York Times on August 14, 2009. The article is available at http://www.nytimes.com/2009/08/15/us/15utah.html?_r=1&emc=eta1. He noted that shadowy lawyers emerge whenever immigration reform legislation is considered. “Every state has a…man or a woman who has been arrested or indicted, or should be arrested or indicted, for engaging in fraudulent activity.”

Mr. Kuck recently represented Youssef Megahed, an Egyptian student who had been acquitted in federal court of terrorism charges but held on immigration charges. On August 20, 2009, an immigration judge found that there was insufficient evidence that Mr. Megahed was engaged in terrorist activities. Mr. Megahed was freed pending the government’s appeal. For more on this case, see http://www.nytimes.com/2009/08/22/us/22deport.html.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) recently co-authored an article, “Form(s) Over Substance – USCIS Plunges to New Low,” published in the New York Law Journal. The article notes that USCIS officers, “enmeshed in a culture of ‘no,’ are more focused on detecting fraud than interpreting the law with commonsense notions of fairness and justice.” The article refers to a blog posting by Mr. Kuck, “USCIS–H-1B Investigations Run Amok!” (Aug. 7, 2009), accessible at http://ailaleadership.blogspot.com/2009/08/uscis-h-1binvestigations-run-amok.html. The article is available at http://www.seyfarth.com/dir_docs/publications/AttorneyPubs/Form(s)overSubstance.pdf.

Mr. Paparelli was quoted on August 28, 2009, by the Society for Human Resource Management. In “Drop in H-1B Visa Petitions: Blip or Lasting Trend?”, Mr. Paparelli noted that U.S. Citizenship and Immigration Services has been “quite sensitive” to political pressures, and that its requests for evidence (RFEs) are becoming increasingly burdensome. For example, Mr. Paparelli noted, an RFE might demand to see how a contract specifies that services will be performed by a worker in a specialty occupation, but “[m]any contracts don’t do that.” He noted that once USCIS receives a copy of a contract, it may then be subject to a Freedom of Information Act request, which carries a risk of disclosure of confidential company information to competitors. For a link to the article, available to SHRM members, see http://www.shrm.org/LegalIssues/FederalResources/Pages/default.aspx.

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11. Government Agency Links

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

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

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

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

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