News from the Alliance of Business Immigration Lawyers Vol. 5, No. 11B • November 15, 2009

Headlines:

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

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

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

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

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

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

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

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

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

10. Government Agency Links – Government Agency Links

Details:

1. USCIS Reminds Applicants for Travel Documents To Apply Early

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9. Recent News from ABIL Members

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

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

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

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

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

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

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

10. Government Agency Links

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

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

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

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