News from the Alliance of Business Immigration Lawyers Vol. 5, No. 10B • October 15, 2009
1. DHS Rescinds ‘No-Match’ Rules – DHS said it will focus its enforcement efforts relating to the employment of unauthorized workers on improved verification.
2. Congress Poised To Extend Four Immigration Programs for Three Years – The final conference report includes a three-year extension for four immigration programs: (1) the E-Verify program; (2) the EB-5 immigrant investor regional center program; (3) certain EB-4 religious workers; and (4) the Conrad State 30 program for certain J-1 foreign doctors.
3. Many Visa Number Cut-Off Dates Not Budging in November, State Dept. Says; Two Employment Visa Categories Set To Expire – It has been necessary to hold most of the employment cut-off dates for November, and the Department said it is not possible to provide an estimate of future cut-off date movements.
4. USCIS Issues Controversial Clarification of Requirements for Agents Filing as Petitioners for O and P Visas – A commentator predicts that this news release “will shake up the world of arts and entertainment.”
5. State Dept. Issues DV-2011 Visa Lottery Instructions – Entries for the DV-2011 Lottery must be submitted electronically by noon EST on Monday, November 30, 2009.
6. State Dept. Issues Final Rule on Documentation of Nonimmigrants in Religious Occupations – Consular officers must ensure that R-1 visa applicants have obtained an approved USCIS Form I-129 petition before a visa can be issued.
7. NYC Mayor Bloomberg Announces New Immigration Efforts – Mayor Bloomberg has called immigrants the “lifeblood of New York City.”
8. State Dept. Receives Petition for New U.S.-Mexico Bridge – The bridge would enable ticketed airline passengers to travel between Mexico’s Tijuana International Airport and San Diego via an enclosed, elevated pedestrian bridge.
9. USCIS Launches E-Notification – USCIS has launched an “E-Notification” initiative for immigration applications and petitions filed at one of three USCIS Lockbox facilities.
10. USCIS Announces New Notice of Entry of Appearance Forms for Attorneys and Accredited Representatives – A revised Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) and a new Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States (Form G-28I) have been issued.
11. Recent News from ABIL Members – Recent News from ABIL Members
12. Government Agency Links – Government Agency Links
1. DHS Rescinds ‘No-Match’ Rules
Effective November 6, 2009, the Department of Homeland Security (DHS) is rescinding the final rules it promulgated in 2007 and 2008 relating to procedures that employers may take to acquire a safe harbor from receipt of “no-match” letters, which the Social Security Administration (SSA) sends to employers when the combination of an employee name and social security number does not match SSA records. DHS proposed to rescind the no-match rules on August 19, 2009, and is issuing this final rule without change.
Implementation of the 2007 final rule was preliminarily enjoined by the U.S. District Court for the Northern District of California on October 10, 2007. After further review, DHS said it will focus its enforcement efforts relating to the employment of unauthorized workers on improved verification, including participation in E-Verify, the ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs. DHS said that IMAGE is “designed to help the business community develop and implement hiring and employment verification best practices.”
USCIS said that “[t]hese tools focus on more universal compliance with the employment eligibility verification requirements of the Immigration and Nationality Act than a safe harbor procedure for a limited number of employers who receive a No-Match letter.” The agency said that a no-match letter is “reactive, either one specifically guided to the employment eligibility issue from ICE or one indirectly pointing to a potential employment eligibility issue through social security number record mismatches on tax filings through SSA.”
DHS also noted that “unscrupulous employers would continue to find ways to take advantage of the system, regardless of whether the No-Match rules were in place.” The agency said it focuses criminal and civil enforcement efforts against “the most egregious violators: employers who use unauthorized workers in order to gain a competitive advantage or those who exploit the vulnerable, often engaging in human trafficking and smuggling, identity theft, and social security number and document fraud”; and “employers in the Nation’s critical infrastructure sites, including airports, seaports and power plants.”
The final rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-24200.pdf.
2. Congress Poised To Extend Four Immigration Programs for Three Years
House and Senate conferees completed their negotiations on the final version of the fiscal year 2010 Department of Homeland Security appropriations bill (H.R. 2892) on October 7, 2009. The final conference report includes a three-year extension for four immigration programs: (1) the E-Verify program; (2) the EB-5 immigrant investor regional center program; (3) certain EB-4 religious workers; and (4) the Conrad State 30 program for certain J-1 foreign doctors.
The final three-year compromise emerged after a very contentious internal debate and a nearly successful effort by some members of Congress to eliminate all immigration “extender” provisions from the bill.
The conference version of the bill will now go to the House and Senate for final votes and then to President Obama for signature. The President is expected to sign the bill before October 31, when the four programs are currently scheduled to expire.
3. Many Visa Number Cut-Off Dates Not Budging in November, State Dept. Says; Two Employment Visa Categories Set To Expire
The State Department’s Visa Bulletin for November 2009 notes that demand from U.S. Citizenship and Immigration Services offices has far exceeded earlier indications of cases eligible for immediate processing. As a result, the Department said, it has been necessary to hold most of the employment cut-off dates for November, and it is not possible to provide an estimate of future cut-off date movements.
Regarding the employment fourth preference “certain religious workers” category, the Visa Bulletin notes that the non-minister special immigrant program expires on October 30, 2009. No SR-1, SR-2, or SR-3 visas may be issued overseas on or after October 30, 2009. Visas issued before that date may only be issued with a validity date of October 30, 2009, and all individuals seeking admission as a non-minister special immigrant must be admitted into the U.S. no later than midnight on October 30, 2009.
Regarding the employment fifth preference pilot categories (I5, R5), the immigrant investor pilot program was extended through October 30, 2009. I5 and R5 visas may be issued until the close of business on October 30, 2009, and may be issued for the full validity period. No I5-1, I5-2, I5-3, R5-1, R5-2, or R5-3 visas may be issued after October 30, 2009.
The cut-off dates for the categories mentioned above have been listed as “Unavailable” for November. If there is legislative action extending one or both of these categories for fiscal year 2010, the Department said, those cut-off dates would become “Current” for November. As noted in article #2 above, Congress is about to extend those two categories for three years.
The Visa Bulletin for November 2009 is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4576.html.
4. USCIS Issues Controversial Clarification of Requirements for Agents Filing as Petitioners for O and P Visas
U.S. Citizenship and Immigration Services (USCIS) issued a controversial clarification on October 7, 2009, for performing arts associations and their members of the regulatory requirements for agents who file as petitioners for the O and P visa classification. The agency said it issued the clarification in response to inquiries “that reveal confusion regarding the circumstances under which an agent may file O and P petitions on behalf of multiple employers.”
USCIS noted that O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. Both the O and P regulations provide that if the beneficiary employee will work concurrently for more than one employer within the same time period, each employer must file a separate petition with the USCIS Service Center that has jurisdiction over the area where the person will perform services, unless an “established agent” files the petition.
A petition filed by an agent is subject to several conditions, USCIS noted. A petition involving multiple employers may be filed by a person or company in business as an agent as the representative of both the employers and the beneficiary, if:
- The supporting documentation includes a complete itinerary of the event or events.
- The itinerary specifies the dates of each service or engagement, the names and addresses of the actual employers, and the names and addresses of the establishments, venues, or locations where the services will be performed.
- The contract between the employers and the beneficiary is submitted.
- The agent explains the terms and conditions of the employment and provides any required documentation.
In addition, USCIS pointed out, an agent who is also the beneficiary’s employer may file a petition, but the agent must specify the wage offered and the other terms and conditions of employment as described in the contractual agreement between the agent/employer and the beneficiary employee. Therefore, while the regulations permit an agent to file a petition on behalf of multiple employers (including the agent/employer itself), the regulations require that the agent be “in business” as an agent. An employer that files a petition on behalf of other employers under the guise of being such employers’ “agent” does not meet this condition, the agency said. “For example, if Employer A files a petition for a beneficiary it will be sponsoring, and submits an itinerary that includes performances for the beneficiary with other employers, at different times, and at different venues, USCIS generally would only approve the petition for Employer A and deny the petition with respect to the other employers.”
Such a petition may be approved with respect to all employers only if Employer A can establish to the satisfaction of USCIS that it is “in business as an agent,” and that the other employers are its clients. This may be accomplished, USCIS said, by agent-Employer A submitting all of the required evidence listed above, as well as evidence of the agency relationship, such as a copy of its contract with the other employers.
ABIL member Angelo Paparelli (https://www.abil.com/lawyers/lawyers-paparelli.cfm) predicts that this news release will shake up the world of arts and entertainment. As the “Nation of Immigrators” blog notes, “Major producing and presenting venues, arts organizations, funding and grant-making organizations, the theatre-going public, and especially immigration practitioners who work with performers should all object formally, forcefully, and fast. Unless this informal rule is rescinded, American theaters, concert halls and other presenting venues are going to find big holes in their budgets for upcoming seasons, and risk losing touch with the world of art and entertainment outside our borders.”
The USCIS news release is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-Oct09_update.pdf. A related fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/o-p-visas-7-oct-09-factsheet.pdf. The blog is available at http://www.nationofimmigrators.com/.
5. State Dept. Issues DV-2011 Visa Lottery Instructions
On October 6, 2009, the Department of State announced that entries for the DV-2011 Lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5) Monday, November 30, 2009.
Applicants may access the electronic Diversity Visa (E-DV) Entry Form at http://www.dvlottery.state.gov/ during the registration period. Paper entries will not be accepted. The Department strongly encourages applicants not to wait until the last week of the registration period to enter. Heavy demand may result in Web site delays. No entries will be accepted after noon, EST, on November 30, 2009. All entries by an individual will be disqualified if more than one entry for that individual is received, regardless of who submitted the entry.
For DV-2011, no countries have been added or removed from the previous year’s list of eligible countries. For DV-2011, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years: Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
The full instructions, including details on eligibility and how to apply, are available at http://edocket.access.gpo.gov/2009/pdf/E9-24077.pdf.
6. State Dept. Issues Final Rule on Documentation of Nonimmigrants in Religious Occupations
To comply with the Department of Homeland Security regulation requiring sponsoring employers to file petitions for all persons for whom R-1 nonimmigrant status is sought, the Department of State issued a final rule, effective October 6, 2009, that establishes a requirement that consular officers ensure that R-1 visa applicants have obtained an approved U.S. Citizenship and Immigration Services (USCIS) Petition for a Nonimmigrant Worker (Form I-129) before a visa can be issued.
The Department explained that USCIS has implemented the petition requirement for nonimmigrant religious workers as a way to determine the bona fides of a petitioning religious organization located in the U.S. and to determine that a religious worker will be admitted to the U.S. to work for a specific religious organization at the request of that organization.
The final rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-24089.pdf.
7. NYC Mayor Bloomberg Announces New Immigration Efforts
In a recent speech at CUNY Graduate Center, New York City Mayor Michael Bloomberg said the city “needs more immigrants.” As part of his plan for a possible third term should he be reelected on November 3, 2009, Mayor Bloomberg has called immigrants the “lifeblood of New York City” and expressed his support for comprehensive immigration reform with a pathway to citizenship and for the DREAM Act, “which would allow children of undocumented immigrants to become citizens in exchange for attending college or performing military service.” Mr. Bloomberg also plans to create an Immigrant Advisory Board “with members of the religious, labor, business, cultural, and community-based networks to meet quarterly.”
Mr. Bloomberg noted that in June 2009, the city’s Department of Small Businesses Services (SBS) unveiled an initiative to help Latino small business owners that included a financing fair, a full-day seminar on business assistance and government resources, information resources in Spanish and English (http://nyc.gov/html/sbs/html/pr/news_latinobusiness.shtml), the launch of an online directory on the National Hispanic Business Information Clearinghouse Web site (http://hispanicbic.org/businessDirectory.php), and the opening of a new NYC Business Solutions satellite office in Washington Heights. “This targeted strategy to assist Hispanic small businesses will be replicated for other immigrant small business communities,” Mr. Bloomberg said. “SBS will be charged with developing and executing community-specific strategies for the largest immigrant small business communities in New York City over the third term.”
Among other things, Mr. Bloomberg also said that New York City will partner with private law firms to dispatch deferred legal associates to immigrant communities in need of quality legal assistance and representation. The associates will be deployed for a minimum one-year fellowship. The city will commit $2 million to the effort to cover a team of supervising attorneys and ongoing training of associates and technical assistance in the area of immigration law. The city also will work with local law schools to engage alumni into a “Call to Service for the Legal Community” to provide pro bono legal assistance to immigrants.
“Immigrants: The Lifeblood of New York City” is available at http://www.mikebloomberg.com/ImmigrantsLifebloodNYC.pdf.
8. State Dept. Receives Petition for New U.S.-Mexico Bridge
The Department of State recently received an application for a Presidential permit to construct, operate, and maintain a new international pedestrian bridge, the “San Diego-Tijuana Airport Cross Border Facility (CBF),” to be located on the U.S.-Mexico border near San Diego, California, and Tijuana, Baja California, Mexico. Otay-Tijuana Venture, L.L.C., consists of companies owned by U.S. and Mexican investors and is undertaking the project as a for-profit, commercial activity. The CBF would enable ticketed airline passengers to travel between Mexico’s Tijuana International Airport and San Diego via an enclosed, elevated pedestrian bridge. The CBF would allow such travelers to bypass San Diego’s ports of entry and to avoid driving through the city of Tijuana.
Written comments are invited by December 31, 2009, and should be sent to the person named in the notice, which is available at http://edocket.access.gpo.gov/2009/pdf/E9-23812.pdf.
9. USCIS Launches E-Notification
U.S. Citizenship and Immigration Services (USCIS) has launched an “E-Notification” initiative for immigration applications and petitions filed at USCIS Lockbox facilities in Chicago, Illinois; Phoenix, Arizona; and Lewisville, Texas. If you file your USCIS applications and/or petitions at one of these facilities, you will have the option to receive an e-mail and/or text message informing you that USCIS has accepted your application or petition. If you would like to receive an E-Notification that your application or petition has been accepted, complete Form G-1145, E-Notification of Application/Petition Acceptance, and attach it to the top of your application or petition.
Forms that are currently processed through the USCIS Lockbox facilities relate to:
- Family-based forms
- Applications for Temporary Protected Status
- Card replacement
- Citizenship and naturalization forms
- Adoption forms
By the end of 2009, the following additional forms are expected to be filed through Lockbox facilities:
- All remaining adjustment-of-status forms
- All employment authorization request forms
- All requests for travel documents
A fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/FY%2009/September%202009/E-Notification%20Capability%20Fact%20Sheet_16Sep09.pdf.
10. USCIS Announces New Notice of Entry of Appearance Forms for Attorneys and Accredited Representatives
U.S. Citizenship and Immigration Services (USCIS) has announced that a revised Notice of Entry of Appearance as Attorney or Accredited Representative (Form G-28) and a new Notice of Entry of Appearance as Attorney in Matters Outside the Geographical Confines of the United States (Form G-28I) have been issued.
USCIS is providing a “grace period” until October 30, 2009, so that G-28s currently in the mail will be considered valid when received at the USCIS Lockbox facility or USCIS Service Center. After October 30, any previous versions of the G-28 that are received will be considered invalid. All G-28s filed before October 30 will be honored for previously filed cases as long as the G-28 was properly completed by an eligible attorney or accredited representative. The new G-28 is not required for receiving updates or interviews unless a new attorney is representing the applicant.
The new G-28I is for use by attorneys admitted to practice law who seek to appear before the Department of Homeland Security (DHS) in matters outside of the U.S. Acceptance by a DHS entity of a completed G-28I does not itself constitute approval by the DHS entity for the attorney to represent the applicant or petitioner in the matter for which the G-28I was filed. The G-28I may not be filed for matters in DHS offices within the U.S.
The American Immigration Lawyers Association (AILA) has noted concerns with the short implementation timeframe for the new forms, as well as other issues, including the fact that the revised G-28 requires marking the form with specific USCIS form numbers to which the attorney’s appearance is related. AILA also noted that the revised form has separate areas that would be filled out if the matter is before Immigration and Customs Enforcement (ICE) or Customs and Border Protection (CBP). In practice, AILA noted, this could have serious implications where related issues are handled by different components of the Department of Homeland Security, such as when a file is transferred from USCIS to ICE for investigation.
The announcement is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/G-28%20Update%209%2029%2009%20FINAL.pdf. The new G-28 form is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=44bd4154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=c94e6d26d17df110VgnVCM1000004718190aRCRD. The new G-28I form is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b70c2cd104314210VgnVCM100000082ca60aRCRD&vgnextchannel=25fb1a3d215a3210VgnVCM100000b92ca60aRCRD.
11. Recent News from ABIL Members
On September 30, 2009, Steve Garfinkel (https://www.abil.com/lawyers/lawyers-garfinkel.cfm) presented an immigration law update to members of The Employer’s Association (http://www.employersassoc.com). In his presentation, Steve reviewed worksite compliance matters as they relate to government visits in the workplace.
On October 19, 2009, Ron Klasko (https://www.abil.com/lawyers/lawyers-klasko.cfm), Bernie Wolfsdorf (https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm), and Steve Yale-Loehr (https://www.abil.com/lawyers/lawyers-loehr.cfm) will speak on various EB-5 immigrant investor issues at a day-long EB-5 conference in San Francisco sponsored by the American Immigration Lawyers Association. For more information, go to http://www.aila.org/content/default.aspx?docid=29141.
Mr. Yale-Loehr was quoted in an October 10, 2009, article in the South China Morning Post about the EB-5 immigrant investor program. As Steve noted in the article, ” [t]he EB-5 program packs a powerful economic punch in the current depressed economy.”
12. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do
Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm
Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html