UNITED KINGDOM: Non-EU Family Members With Valid EU Residency Permission Need Not Apply for Additional Permission To Enter the UK

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In December, the European Court of Justice (ECJ) handed down a significant judgment regarding the rights of non-EU family members of EU citizens to enter the UK.

In that case, a dual British and Irish citizen, his Colombian wife, who held a Spanish residence card, and their children had resided in Spain since 2010. The family also had a house in the UK to which they would travel often. However, UK law required that the wife obtain an EEA family permit before entering the UK, a process that required applying at the diplomatic mission in Madrid, a significant distance from their home in Marbella.

The court held that “a person who is a family member of a Union citizen and is in a situation such as that of Ms. McCarthy Rodriguez is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of that Union citizen’s Member State of origin.”

The UK government has expressed its concern and disappointment with the ruling, citing a lack of consistency among EU member states with regard to the issuance of residence cards.

News from the Alliance of Business Immigration Lawyers Vol. 6, No. 1B • January 15, 2010

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Headlines:

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

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

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

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

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

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

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

Details:

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

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

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

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

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

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

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

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2. SSA Fails To Verify 19 Percent of New Hires

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

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

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

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3. DHS Grants TPS to Haitians Following Catastrophic Earthquake

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

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

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

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

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

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

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

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

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

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

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6. New Publications and Items of Interest

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

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

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

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

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

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

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News from the Alliance of Business Immigration Lawyers Vol. 6, No. 1A • January 01, 2010

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Headlines:

1. FY 2010 H-1B Cap Reached – December 21, 2009, is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010.

2. H-1C Nonimmigrant Nurse Classification Expires – The H-1C nonimmigrant nurse category expired on December 21, 2009.

3. USCIS Changes Address of Filing Location for Naturalization Applications – USCIS announced revised addresses for naturalization applications filed at USCIS Lockbox facilities in Phoenix and Dallas.

4. Did USCIS Immediately Deny Your Adjustment of Status Application Following a Change of Employment? – USCIS’s ombudsman asks that those who think their cases may have been denied erroneously to forward the ombudsman a case problem.

5. USCIS Ombudsman Discusses Pending Derivative I-485s Due to File Separation – If a family member’s derivative adjustment of status application has been pending in excess of 30 days from the approval date of the principal applicant’s I-485, the ombudsman will review e-mailed documentation.

6. State Dept. Withdraws Proposed Rule on Secondary School Students Under Exchange Visitor Program – The Department withdrew the proposed rule because it was submitted before the OMB completed its review.

7. Labor Dept. Announces Centralization of Prevailing Wage Determinations – The National Prevailing Wage and Helpdesk Center will receive and process prevailing wage determination requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs.

8. State Dept. Proposes Increase in Nonimmigrant Visa Application, BCC Fees – The Department of State published a proposed rule on December 14, 2009, to increase nonimmigrant visa application processing and BCC fees.

9. CNMI Update: Advance Parole, Biometrics/Interviews – Among other things, USCIS reminds noncitizens living in the CNMI to apply for advance parole before traveling abroad if they do not otherwise have U.S. lawful permanent resident status or an appropriate U.S. visa.

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

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

12. Government Agency Links – Government Agency Links

Details:

1. FY 2010 H-1B Cap Reached

U.S. Citizenship and Immigration Services (USCIS) announced on December 22, 2009, that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. December 21, 2009, is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010. Regulations now provide that H-1B petitions received by USCIS on or before December 19 (because of the weekend) have been submitted “under the cap,” but H-1B petitions received by USCIS on or after December 22, 2009, will be rejected.

USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. Properly filed cases will be considered received on the date that USCIS physically receives the petition, not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after December 21, 2009.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:

  • extend the amount of time a current H-1B worker may remain in the U.S.
  • change the terms of employment for current H-1B workers
  • allow current H-1B workers to change employers
  • allow current H-1B workers to work concurrently in a second H-1B position

Now that the FY 2010 cap has been reached, the earliest an employer can file a new H-1B petition will be April 1, 2010, with an employment start date of October 1, 2010.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=153a1638367b5210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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

Although no new H-1B petitions will be accepted, there are still a number of solutions available to employers and foreign professionals. For example, some foreign students may be able to extend their pre- or post-graduation employment authorization. Citizens of Canada, Mexico, Chile, Singapore and Australia may want to consider free trade visa benefits. Many other nonimmigrant work visa categories exist. Employers and foreign nationals should consult with your ABIL attorney to determine possible eligibility for these benefits.

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2. H-1C Nonimmigrant Nurse Classification Expires

The H-1C nonimmigrant nurse category expired on December 21, 2009. The classification authorized the admission of up to 500 nurses annually to work in eligible health care facilities. After the original 1999 statutory authorization of the program expired in 2005, Congress reauthorized it for three years beginning December 20, 2006, in the Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005. The statutory authority for the program has not been extended.

U.S. Citizenship and Immigration Services noted that this expiration does not affect the ability of H-1C nurses currently in status to continue employment during their authorized period of stay, the authority of USCIS to adjudicate a petition properly filed on or before December 21, 2009, or the eligibility of the beneficiary of an approved H-1C petition to be admitted to the U.S. as an H-1C nonimmigrant.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=34291c5944e95210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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3. USCIS Changes Address of Filing Location for Naturalization Applications

U.S. Citizenship and Immigration Services (USCIS) announced on December 17, 2009, revised addresses for applicants filing an Application for Naturalization (Form N-400) at USCIS Lockbox facilities in Phoenix and Dallas. The filing address change took effect immediately.

Applicants who previously filed their applications at the Lewisville Post Office (P.O.) Box will now file their applications at a P.O. Box in Dallas. In addition, USCIS noted a change to the USCIS Phoenix Lockbox address. Starting immediately, applicants filing an N-400 at the USCIS Dallas or Phoenix Lockbox must submit the application and all supporting documents and fees to the new addresses, based on where they live. The new addresses are available at the link below.

The U.S. Postal Service forwarded mail from the Lewisville Post Office to the new post office in Dallas until December 31, 2009. After that date, USCIS noted, the Postal Service will forward the mail through normal channels, “which will likely delay receipt at the Dallas Lockbox facility.”

Applicants filing an N-400 under military provisions (INA Section 328 or 329), should file their application at the Nebraska Service Center, P.O. Box 87426, Lincoln, NE 68501-7426, regardless of where the applicant lives. This includes current military spouses regardless of geographic location or jurisdiction.

Those filing an N-400 at a USCIS Lockbox facility may elect to receive an e-mail and/or text message notification that the application has been accepted. The applicant must complete an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of the application.

The N-400 form instructions have been updated to reflect the new filing locations. The new addresses are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=91cc1c5944e95210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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4. Did USCIS Immediately Deny Your Adjustment of Status Application Following a Change of Employment?

The U.S. Citizenship and Immigration Services (USCIS) ombudsman’s office reported that it has received reports of the agency not issuing Notices of Intent to Deny following a change of jobs, as required by the American Competitiveness in the 21st Century Act (AC21) and USCIS policy guidance, but instead is immediately denying pending Form I-485 (Application to Register Permanent Residence or Adjust Status) applications.

If a foreign national is (1) the beneficiary of an approved Form I-140 (Petition for Immigrant Worker); and (2) has an I-485 pending for 180 days or more, the ombudsman notes, he or she is eligible to change to a same or similar position. If the underlying approved I-140 is withdrawn, and no evidence of a new qualifying offer of employment was submitted, then USCIS must issue a Notice of Intent to Deny the pending I-485.

However, the ombudsman understands that USCIS may deny the I-485 in cases of portability (the ability to change jobs) before first issuing a Notice of Intent to Deny in certain limited circumstances. These include, for example, where the beneficiary is ineligible for the benefits of the I-485 by statute, or the I-140 is withdrawn before the I-485 was pending for 180 days.

USCIS’s ombudsman asks that those who think their cases may have been denied erroneously to forward the ombudsman a case problem using Department of Homeland Security Form 7001 (http://www.dhs.gov/files/programs/editorial_0497.shtm) with the subject line, “AC21 Evidence of Immediate Denial.” The complainant should include a copy of the denial notice, detailed information on the reasons for the immediate denial and, if appropriate, evidence that a Motion to Reopen or Reconsider was submitted. If the ombudsman’s office considers the case to be an erroneous denial, it will forward the case directly to USCIS for further review.

For more information, see http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#2.

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5. USCIS Ombudsman Discusses Pending Derivative I-485s Due to File Separation

U.S. Citizenship and Immigration Services (USCIS) sometimes approves a Form I-485 (Application to Register Permanent Residence or Adjust Status) for a principal applicant, but the derivative family members’ (spouse or minor children) I-485 applications remain pending. While in some cases this may be due to missing evidence, security clearance difficulties, or some other legitimate reason, the file may just be separated from the principal’s, the USCIS ombudsman noted recently.

If a family member’s derivative adjustment of status application has been pending in excess of 30 days from the approval date of the principal applicant’s I-485, the ombudsman asks that the following be e-mailed to cisombudsman.publicaffairs@dhs.gov:

  • DHS Form 7001;
  • A copy of the principal applicant’s I-485 approval notice;
  • A copy of the I-485 receipt notice for the derivative;
  • A copy of the approved immigrant visa petition notice (if employment-based); and
  • Any other evidence that is pertinent to the case.

The subject line of the e-mail should include: “Unapproved Derivative I-485.”

The ombudsman said it will look into such cases “and review how we may be of assistance.”

The notice is available at http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#1.

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6. State Dept. Withdraws Proposed Rule on Secondary School Students Under Exchange Visitor Program

On December 23, 2009, the State Department published a proposed rule on secondary school students under the Exchange Visitor Program. The Department revised existing regulations “to provide greater specificity and clarity to sponsors of the Secondary School Student category with respect to the execution of sponsor oversight responsibilities under the exchange visitor program.” The Department subsequently withdrew the rule in its entirety on December 29, 2009, because it was submitted before the Office of Management and Budget completed its review.

The notice is at http://edocket.access.gpo.gov/2009/pdf/E9-30837.pdf.

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7. Labor Dept. Announces Centralization of Prevailing Wage Determinations

As of January 1, 2010, the Department of Labor’s Office of Foreign Labor Certification’s National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, DC, began receiving and processing prevailing wage determination requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs. The notice also includes information about processing CNMI prevailing wage determinations. For the time being the NPWHC will only process prevailing wage determination requests received by mail in hard copy. The Department said it is developing an electronic means for the submission of such requests.

The notice is available at http://www.foreignlaborcert.doleta.gov/pdf/E928963_120409.pdf.

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8. State Dept. Proposes Increase in Nonimmigrant Visa Application, BCC Fees

The Department of State published a proposed rule on December 14, 2009, to increase nonimmigrant visa application processing and Border Crossing Card (BCC) fees. Under the proposed rule:

  • Applicants for all visas that are not petition-based, including B-1/B-2 tourist and business visitor visas and student/exchange visitor visas, would pay $140
  • Applicants for petition-based visas (H, L, O, P, Q, R) would pay $150
  • Applicants for treaty traders and investors (E) would pay $390
  • Applicants for K visas would pay $350
  • Applicants for nonpetition-based machine-readable visas (except E category) and BCC applications, with the exception of certain Mexican citizen minors’ BCCs, would pay $140

The press release is available at http://www.travel.state.gov/news/press/press_4603.html. The proposed rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-29722.pdf.

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9. CNMI Update: Advance Parole, Biometrics/Interviews

U.S. Citizenship and Immigration Services (USCIS) reminds noncitizens living in the Commonwealth of the Northern Mariana Islands (CNMI) to apply for advance parole before traveling abroad if they do not otherwise have U.S. lawful permanent resident status or an “appropriate” U.S. visa (not a visa for “B” visitor admission or under the Visa Waiver Program only). Advance parole allows people lawfully living and working in the CNMI to continue to do so when they return from foreign travel. It will also allow processing of a pending application for adjustment of status to that of lawful permanent resident to continue.

USCIS also notes that those living and/or working or studying in the CNMI under CNMI permits should request parole before seeking to travel to Guam and other parts of the U.S. People who entered before November 28, 2009, are present without admission or parole. Although they are entitled to lawfully remain and work in the CNMI to the extent they were authorized to do so under former CNMI law as of November 28, 2009, for up to two years after that date, they will need a grant of parole to continue to live, work, and/or study in the CNMI during this period after travel to another U.S. destination.

USCIS advises applicants for immigration benefits in the CNMI who live in Rota or Tinian that appointments for biometrics and interviews have been combined into one. USCIS did this to minimize the expense people face in traveling to Saipan twice for separate biometrics appointment and interview. If an applicant in Rota or Tinian who is awaiting an interview receives a notice of a biometrics appointment, he or she can ignore that notice and have the fingerprints and photograph taken the day of the interview.

Details on advance parole for CNMI workers are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=44c2f4668d895210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD andhttp://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=6a71f4668d895210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A technical correction to the CNMI interim rule (adding the edition date and OMB Control Number for the new Form I–9 CNMI, “CNMI Employment Eligibility Verification”) is available at http://edocket.access.gpo.gov/2009/pdf/E9-30287.pdf.

Information about the issuance of prevailing wage determinations for use in the CNMI is available at http://www.foreignlaborcert.doleta.gov/pdf/E928963_120409.pdf.

For more information about immigration benefits or to check the status of an application, USCIS suggests visiting http://www.uscis.gov/cnmi; calling USCIS Customer Service at 1-800-375-5283; or making an appointment via the Web site to visit the USCIS office at TSL Plaza in Saipan.

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10. New Publications and Items of Interest

Global Workforce Impact Survey. Western Union and The Economist have published the “Western Union Global Workforce Impact Survey.” The report notes that nearly one out of six people worldwide has migrated, representing a vast mobile workforce. This includes 740 million who are traveling within their own country, and 200 million who are moving across international borders.1 With more people on the move, the report says, international migration is increasingly recognized as central to economic vitality and global competitiveness. Varying immigration laws among countries often limit a company’s ability to hire the necessary talent, the report notes: “With an eye fixed on the future, businesses increasingly see open immigration policies as enabling them to expand quickly when the economy turns around.” The report calls for policymakers to address these business needs by developing flexible immigration policies that minimize the barriers to mobility and address concerns about the impact of foreign workers on domestic wages, working conditions, and opportunities. The survey of 501 senior executives was designed to provide new insight into business attitudes and practices toward cross-border workforce supplies. More than three out of four (76 percent) respondents believe that foreign workers have a positive impact on the economy. See http://corporate.westernunion.com/global_migration.html.
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11. Recent News from ABIL Members

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) has posted “The New Immigration Reform Bill – And An American Hero” on his blog, available at http://www.immigration.net/Blog/?m=200912. The blog discusses Rep. Luis Gutierrez and his proposed new legislation, “Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009.”

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) recently debated Mark Krikorian, Center for Immigration Studies, on Southern California Public Radio. Mr. Paparelli suggested that the President should use executive authority to grant work permits and thereby take Congress off the hot seat on immigration as it faces midterm elections. Mr. Krikorian said the President had such authority but that he would be impeached if he tried that. Mr. Paparelli does not believe impeachment is likely. To hear the program, go to http://www.scpr.org/programs/patt-morrison/2009/12/29/is-obama-tougher-on-immigration-than-bush/.

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

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12. Government Agency Links

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

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

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

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

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