News from the Alliance of Business Immigration Lawyers Vol. 6, No. 4B • April 15, 2010

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Headlines:

1. Few H-1 Petitions Filed So Far – USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap.

2. USCIS Discusses Extension of Post-Completion Optional Practical Training and F-1 Status for Students Under H-1B Cap-Gap Regulations – The Q&A explains the cap-gap and other details.

3. Dept. of State Discusses Visa Number Availability – The Mexico employment third and “Other Worker” categories have become “unavailable,” and a cut-off date may need to be established for the employment fourth preference category as early as June.

4. Publications and Items of Interest – Publications and Items of Interest

5. Government Agency Links – Government Agency Links

Details:

1. Few H-1 Petitions Filed So Far

U.S. Citizenship and Immigration Services (USCIS) announced on April 8, 2010, that it continues to accept H-1B nonimmigrant petitions subject to the fiscal year (FY) 2011 cap. USCIS will monitor the number of petitions received for both the 65,000 general cap and the 20,000 U.S. master’s degree or higher educational exemption.

USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 5,600 petitions for individuals with advanced degrees. This is lower than the number of H-1B petitions USCIS had received by the same date in 2009. If this trend continues, H-1B numbers may be available for some time.

When USCIS receives the necessary number of petitions to meet the cap, it will issue a public update that the FY 2011 H-1B cap has been met as of a certain date (the “final receipt date”). The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition has been postmarked. The date USCIS informs the public that the cap has been reached may differ from the actual final receipt date.

USCIS said it may randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.

For cases filed for premium processing during the initial five-day filing window of April 1-7, 2010, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date that the petition is physically received at the correct USCIS Service Center.

Petitions filed by employers who are exempt from the cap or petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years will not count toward the congressionally mandated H-1B cap.

USCIS’s notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=49d412db62fd7210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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2. USCIS Discusses Extension of Post-Completion Optional Practical Training and F-1 Status for Students Under H-1B Cap-Gap Regulations

U.S. Citizenship and Immigration Services (USCIS) released a Q&A (questions and answers) document on April 2, 2010, that addresses the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2010, under the fiscal year (FY) 2011 H-1B cap.

The Q&A notes that an employer may not file, and USCIS may not accept, an H-1B petition submitted earlier than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B petition for the following fiscal year is April 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is the first day of the new fiscal year, October 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, must leave the U.S., apply for an H-1B visa at a consular post abroad, and then seek readmission to the U.S. in H-1B status for the dates reflected on the approved H-1B petition.

H-1B petitions must be timely filed on behalf of an eligible F-1 student, the Q&A notes. Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, the Q&A notes, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected and approved, the student will have the standard 60-day grace period from the date of the rejection notice or his or her program or OPT end date, whichever is later, to prepare for and depart the U.S.

USCIS strongly encourages students “to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.”

The Q&A, which includes details about how to obtain proof of continuing status under the cap-gap extension, limitations on travel and unemployment, and other information, is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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3. Dept. of State Discusses Visa Number Availability

Due to continued heavy applicant demand, primarily by U.S. Citizenship and Immigration Service offices for adjustment of status cases, the annual limits for the Mexico employment third and “Other Worker” categories have been reached. As a result, both categories have become “unavailable,” the Department of State Visa Bulletin for May 2010 notes. Visa numbers will become available once again in October with the start of the new fiscal year.

The Visa Bulletin for May 2010 also notes that applicant demand for employment fourth preference numbers remains very heavy. It is likely that a cut-off date will need to be established in an effort to keep number use within the annual limits. Depending upon number use, this action could occur as early as June, the Visa Bulletin warns.

The May Visa Bulletin also notes that during the past 15 months, the demand for numbers in the family-sponsored preference categories has been very low. As a result, cut-off dates for most family preference categories have been advancing at a very rapid pace in an attempt to generate demand so that the annual numerical limits may be fully used. The Visa Office warns that if demand for family-sponsored green cards begins to materialize, cut-off date movements may begin to slow or stop.

The May Visa Bulletin includes a reminder that any changes of address for applicants processing their case overseas should be reported to the National Visa Center so that information regarding the processing of the case at an overseas post may be sent to the applicant. The May Visa Bulletin notes:

When contacting the National Visa Center (NVC) directly about an immigrant visa application case, always include the following information:

  • The NVC case number
  • Name of the principal applicant
  • Principal applicant’s date of birth
  • Name of the petitioner
  • Petitioner’s date of birth

E-Mail

The public may submit inquiries to the NVC via e-mail at: nvcinquiry@state.gov.

[T]o ensure a prompt response:

  • Provide the relevant NVC Case Number on the subject line of the e-mail.
  • Provide the applicant’s name and date of birth, and the petitioner’s name and date of birth.
  • Provide the name of the law office requesting information.
  • Provide the name of the employer if the petition is employment based.
  • Refer to only one case per e-mail message.

Customer Service

Telephone operators are available to respond to inquiries Monday through Friday from 7:30 am until 12:00 am (EST). Please call (603) 334-0700

Postal Mail

National Visa Center
Attn: WC
31 Rochester Avenue, Suite 200
Portsmouth, NH 03801-2915

The May 2010 Visa Bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4805.html.

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4. Publications and Items of Interest

Labor certification planning guidance for SWAs. The Department of Labor’s Employment and Training Administration released a guidance letter on April 6, 2010, to State Workforce Agencies (SWAs). The letter defines the roles SWAs play in programs administered by the Office of Foreign Labor Certification (OFLC), among other things. The letter notes that labor certification programs are undergoing a number of changes in fiscal year 2010, such as the inclusion of the Commonwealth of the Northern Mariana Islands under U.S. immigration laws; centralization of prevailing wage determinations in the National Prevailing Wage and Helpdesk Center; and the effects of the amended H-2A regulations on SWA responsibilities.

The letter is available at http://wdr.doleta.gov/directives/attach/TEGL/TEGL20-09.pdf.

Evaluation of limited English proficient and Hispanic Worker Initiative. This report by the Department of Labor’s Employment and Training Administration discusses the design of the five Limited English Proficient and Hispanic Workforce Initiative (LEPHWI) projects; describes implementation activities to recruit participants and employers and to develop and deliver training; and describes partnerships to address the needs of LEP individuals during training and placement. The report presents the outcomes for each project, draws comparisons across all five projects in key program areas, and identifies promising practices. The LEPHWI was a strategic effort to improve access to employment and training services for LEP persons and to better serve Hispanic workers through workforce investment programs that address their specific employment challenges, including language and occupational skills.

The report is available at http://wdr.doleta.gov/research/FullText_Documents/Evaluation%20of%20the%20Limited%20English%20Proficiency%20and%20Hispanic%20Worker%20Initiative%20Final%20Report.pdf.

International education and immigration reform. There is near-universal agreement that the U.S. immigration system is broken, but much less agreement on how to fix it. NAFSA: Association of International Educators argues that Congress must recognize the pivotal role of international education and include reforms that expand the United States’ ability to attract foreign students and scholars from around the world. NAFSA urges Congress to adopt the following reforms:

  • Address the visa and immigration challenges foreign students and scholars continue to face in coming to study in the United States.
  • Provide short- and long-term options for foreign students to work after they graduate from U.S. colleges and universities, including a direct path to green card status for sought-after graduates.
  • Increase the number of employment-based green cards available annually so that talented foreign faculty, researchers, and scientists no longer face long delays and unnecessary wait periods while trapped in short-term immigration status.

NAFSA’s statement is available at http://www.nafsa.org/PressRoom/PressRelease.aspx?id=19137. A recent report, A Visa and Immigration Policy for the Brain-Circulation Era: Adjusting to What Happened in the World While We Were Making Other Plans, is available at http://www.nafsa.org/_/File/_/visa_immigration_for_brain_circulation.pdf.

GAO report on American Samoa and CNMI minimum wage increases and effects. The Government Accountability Office (GAO) issued a report in April 2010, entitled American Samoa and Commonwealth of the Northern Mariana Islands: Wages, Employment, Employer Actions, Earnings, and Worker Views Since Minimum Wage Increases Began. The report discusses employers’ cost-cutting measures and worker reactions.

The full report, GAO-10-333, is available at http://www.gao.gov/new.items/d10333.pdf.

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5. 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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News from the Alliance of Business Immigration Lawyers Vol. 6, No. 4A • April 01, 2010

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Headlines:

1. ABIL Meets With USCIS, Proposes Immigration Reforms – ABIL said it believes that employment-based immigration reforms should encompass changes in both nonimmigrant and immigrant visa categories so that the U.S. becomes the most attractive global destination for highly skilled and essential workers.

2. USCIS To Accept FY 2011 H-1B Petitions Beginning April 1 – USCIS will begin accepting H-1B petitions subject to the FY 2011 cap on April 1, 2010.

3. DHS Announces E-Verify Initiatives – The initiatives include a new agreement with the Department of Justice to streamline the adjudication process in cases of E-Verify misuse and discrimination.

4. Office of Foreign Labor Certification Releases Application for Temporary Employment Certification in Fillable PDF Format – The new format provides users with the option to save and reuse the information on the form for future applications.

5. DOL Updates Filing Locations for Certain Prevailing Wage and Labor Cert Programs – The Department of Labor announced a technical change to the filing location address for prevailing wage determination requests in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs, as well as for prevailing wage determination requests for use in the Commonwealth of the Northern Mariana Islands.

6. USCIS Changes Filing Location for Advance Parole Application – The change of filing location for the Application for Travel Document is part of an overall effort to transition the intake of some USCIS forms from local offices and Service Centers to USCIS Lockbox facilities.

7. USCIS Extends Deferred Enforced Departure for Liberians – The sixth-month automatic extension of existing Employment Authorization Documents (EADs) will permit eligible Liberians to continue working while they file their applications for new EADs that will cover the full 12 months of the DED extension.

8. DHS Adds Greece to VWP – Greek nationals can travel under the VWP beginning April 5, 2010.

9. USCIS Releases TPS Application Tips – USCIS provided information and tips about common mistakes in temporary protected status applications.

10. USCIS Reminds Chilean Nationals of Available Benefits – In light of the recent natural catastrophes in Chile, USCIS reminded Chileans of U.S. immigration benefits available to eligible Chilean nationals upon request.

11. USCIS Releases Guidance on Adjudicating P-2 Petitions – In particular, the memo amends previous policy guidance stating that the Service Centers must contact USCIS Headquarters before adjudicating reciprocal exchange agreements that have not been approved previously.

12. Congress Opens H-1B Program to ‘All Smart Educated People’ Worldwide – The legislation, titled the “April Fool’s H-1B Act of 2010,” is expected to be signed immediately by President Obama now that he is done with health care reform and other distractions.

13. ABIL Global: Temporary Foreign Workers – An Important Source of Labor Supply in Canada – Canada’s Temporary Foreign Worker Program enables Canadian employers to hire eligible foreign nationals to work for them in Canada for a specified duration, provided they can demonstrate that the employers cannot find a suitable Canadian/permanent resident to do the job and that the entry of the foreign national will not have a negative impact on the Canadian labor market.

14. Publications and Items of Interest – Publications and Items of Interest

15. Recent News from ABIL Members – Recent News from ABIL Members

16. Government Agency Links – Government Agency Links

Details:

1. ABIL Meets With USCIS, Proposes Immigration Reforms

On March 3, 2010, the Alliance of Business Immigration Lawyers (ABIL) met with Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services (USCIS), and several members of his leadership team. ABIL said it believes that employment-based immigration reforms should encompass changes in both nonimmigrant and immigrant visa categories so that the U.S. becomes the most attractive global destination for highly skilled and essential workers.

ABIL noted inconsistent application of regulations from office to office and recent sudden changes announced by USCIS, such as the delay in the I-9 effective date, which have resulted in companies struggling to meet moving targets and comply with the law. Mr. Mayorkas noted USCIS’ successes but also acknowledged some mistakes. He said USCIS is reviewing policies and field guidance and will determine what should be reaffirmed, withdrawn, or revised in light of input from stakeholders and best practices. He said the agency is developing a system for receiving comments from stakeholders before any new policy change.

ABIL emphasized that H-1B employers should have the right to an attorney during site visits. Moreover, ABIL requested that USCIS reconsider its determination that an individual does not continue to be in lawful status while a case is on appeal.

Among other things, ABIL proposed legitimate avenues under the immigration laws for entrepreneurs to start U.S. businesses, large and small, and thereby obtain work visas and permanent residence. ABIL also proposed legalizing the status of the undocumented in the U.S. so that they may be employed lawfully and contribute to the growth of the economy and the welfare and well-being of the U.S. and its citizens.

ABIL’s membership includes 20 of the top U.S. business immigration law firms, each led by a prominent member of the U.S. immigration bar. ABIL member firms employ over 200 attorneys (400+ total staff) devoted to business immigration in 22 major U.S. cities, plus Brussels, Cologne, Hong Kong, Istanbul, Lima, London, Mexico City, Montreal, Monterrey, Mumbai, Sao Paulo, Shanghai, Sydney, Tokyo, Toronto and Vancouver.

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2. USCIS To Accept FY 2011 H-1B Petitions Beginning April 1

U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap on April 1, 2010. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee, not the date the petition is postmarked.

The fiscal year cap (numerical limitation on H-1B petitions) for FY 2011 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree or higher are exempt from the H-1B cap.

USCIS said it will monitor the number of petitions received and will announce the date on which the agency receives the necessary number of petitions to meet the H-1B cap. If needed, USCIS will randomly select the petitions required to reach the numerical limit from those received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations. Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the H-1B cap until December 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories seeking work dates starting in FYs 2010 or 2011.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count toward the H-1B cap. Accordingly, 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; or
  • allow current H-1B workers to work concurrently in a second H-1B position.

H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence. USCIS has developed detailed information, including a checklist, to assist in the completion and submission of a FY 2011 H-1B petition.

Contact your Alliance of Business Immigration Lawyers for help in filing H-1B petitions.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5b29dd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The checklist is available at http://www.uscis.gov/files/form/m-735.pdf. Additional information about the FY 2011 H-1B program is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD.

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3. DHS Announces E-Verify Initiatives

The Department of Homeland Security (DHS) announced a trio of E-Verify initiatives on March 17, 2010, including (1) a new agreement with the Department of Justice intended to streamline the adjudication process in cases of E-Verify misuse and discrimination; (2) an informational telephone hotline for workers seeking E-Verify information; and (3) new training videos in English and Spanish on E-Verify procedures and policies, employee rights, and employer responsibilities.

The Memorandum of Agreement signed between USCIS and the Department of Justice’s Office of Special Counsel for Unfair Immigration-Related Employment Practices establishes a streamlined process for addressing potential cases of discrimination and employer misuse of E-Verify and establishes a protocol between USCIS and the Department of Justice for referring matters that fall within the agencies’ respective jurisdictions.

The USCIS E-Verify help line will offer employees information about the E-Verify process, as well as assistance in completing the Form I-9 (Employment Eligibility Verification). Callers can also use the help line to file complaints about possible discrimination or employer misuse of the E-Verify program. The hotline number is (888) 897-7781. It is expected to be active beginning April 5, 2010.

The two new educational training videos were created by the DHS Office for Civil Rights and Civil Liberties and are viewable at http://www.dhs.gov/e-verify and http://www.youtube.com/ushomelandsecurity.

DHS reports that more than 192,000 participating employers at more than 705,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility. Since October 1, 2009, E-Verify has processed more than six million queries.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=c7ddadd907c67210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=70beadd907c67210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The Memorandum of Agreement between USCIS and the Department of Justice is available at http://www.uscis.gov/USCIS/Native%20Docs/USCIS_DOJ%20MOA_(signed)_17Mar10.pdf.

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4. Office of Foreign Labor Certification Releases Application for Temporary Employment Certification in Fillable PDF Format

To support implementation of the new H-2A regulations and current H-2B regulations, the Department of Labor’s Office of Foreign Labor Certification (OFLC) is making available the ETA Form 9142, Application for Temporary Employment Certification, in a fillable PDF format. The OFLC said the new format provides users with the option to save and reuse the information on the form for future applications.

The fillable form is available at http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9142.pdf.

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5. DOL Updates Filing Locations for Certain Prevailing Wage and Labor Cert Programs

The Department of Labor announced on March 12, 2010, a technical change to the filing location address for prevailing wage determination requests in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs, as well as for prevailing wage determination requests for use in the Commonwealth of the Northern Mariana Islands.

The notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-5443.pdf.

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6. USCIS Changes Filing Location for Advance Parole Application

On March 19, 2010, U.S. Citizenship and Immigration Services (USCIS) announced revised filing instructions and addresses for applicants filing an Application for Travel Document (Form I-131), which is used to apply for a travel document, reentry permit, or advance parole. The agency said the change of filing location is part of an overall effort to transition the intake of some USCIS forms from local offices and Service Centers to USCIS Lockbox facilities.

Beginning March 19, 2010, applicants will file their applications at the USCIS Vermont Service Center or at one of the USCIS Lockbox facilities.

The USCIS Service Centers will forward incorrectly filed I-131 applications to the USCIS Lockbox facilities until Monday, April 19, 2010. After that date, incorrectly filed applications will be returned to the applicant, with a note to send the application to the correct location.

Those who are currently in removal proceedings or have been previously removed from the U.S. should submit requests to the Department of Homeland Security/Immigration and Customs Enforcement, Office of International Affairs, Attn: Section Chief, Law Enforcement Parole Branch, 800 North Capitol Street, Washington, DC 20536.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=81c55ddca7977210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. Information about the form and links to the form and instructions are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b11747a55773d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD.

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7. USCIS Extends Deferred Enforced Departure for Liberians

On March 19, 2010, U.S. Citizenship and Immigration Services (USCIS) automatically extended employment authorization for Liberian nationals covered under Deferred Enforced Departure (DED) through September 30, 2010, following President Barack Obama’s announcement of his decision to extend DED through September 30, 2011, for qualified Liberians and those persons without nationality who last habitually resided in Liberia. USCIS said that the sixth-month automatic extension of existing Employment Authorization Documents (EADs) will permit eligible Liberians to continue working while they file their applications for new EADs that will cover the full 12 months of the DED extension and for USCIS to complete processing and issuance of those new EADs.

Although DED was scheduled to end for Liberian nationals on March 31, 2010, President Obama determined that there are compelling foreign policy reasons to continue deferring enforced departure from the U.S. for eligible Liberian nationals presently living in the U.S. under the existing grant of DED for 18 additional months.

Certain individuals are ineligible for DED, USCIS noted, including Liberians who did not have temporary protected status (TPS) on September 30, 2007, and are therefore not covered under current DED; certain criminals; persons subject to the mandatory bars to TPS; and persons whose removal is in the interest of the U.S.

In addition to automatically extending the validity of employment authorization documents for Liberian nationals covered under DED, USCIS published a notice in the Federal Register on March 30, 2010, with instructions on how to obtain employment authorization for the remainder of the DED extension. The automatic extension covers EADs issued on Form I–766, Employment Authorization Document, bearing an expiration date of March 31, 2010. These EADs must also bear the notation “A–11” on the face of the card under “Category.”

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f47a88eecf777210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD and the Federal Register notice concerning work authorization is available at http://edocket.access.gpo.gov/2010/pdf/2010-7115.pdf. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f11b88eecf777210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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8. DHS Adds Greece to VWP

On March 9, 2010, the Department of Homeland Security designated Greece as a member of the Visa Waiver Program (VWP). Greek nationals can travel under the VWP beginning April 5, 2010. Potential Greek travelers may apply for travel authorization approval under the Electronic System for Travel Authorization (ESTA) beginning immediately. ESTA approval is now required for all VWP travelers wishing to enter the U.S. DHS published a final rule on the designation of Greece on March 31, 2010.

For more information on the VWP and a list of participating countries, see http://travel.state.gov/visa/temp/without/without_1990.html. The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-7211.pdf.

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9. USCIS Releases TPS Application Tips

On U.S. Citizenship and Immigration Services’ new blog, The Beacon, the agency has provided information and tips about common mistakes in temporary protected status (TPS) applications. Specifically, USCIS said, it has received thousands of applications since the designation of Haiti for TPS, and has noticed the following problems that may cause delays or rejections:

  1. Not including the appropriate filing fee. Those who cannot afford to pay the filling fee may request a fee waiver.
  2. Not completing every question on the form.
  3. Not including the applicant’s A-number (if he or she has one).
  4. Not signing the application.
  5. Using an incorrect form to apply for TPS. Use only forms I-821 and I-765 to apply for TPS.

The tips were provided on March 5, 2010, at http://www.uscis.gov/blog/.

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10. USCIS Reminds Chilean Nationals of Available Benefits

In light of the recent earthquakes in Chile, U.S. Citizenship and Immigration Services (USCIS) recently reminded Chileans of U.S. immigration benefits available to eligible Chilean nationals upon request. Options may include the grant of an application for change or extension of nonimmigrant status on behalf of a Chilean national who is currently in the U.S., “even in cases where the request is submitted after the individual’s authorized period of admission has expired”; expedited adjudication and approval, where possible, of requests for off-campus employment authorization due to severe economic hardship for F-1 students; and expedited issuance of employment authorization where appropriate, among others.

For more information on immigration-related benefits available to Chileans, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=c618d0438c947210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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11. USCIS Releases Guidance on Adjudicating P-2 Petitions

U.S. Citizenship and Immigration Services (USCIS) issued a memorandum to the field to provide guidance on processing and adjudicating Form I-129, Petition for Nonimmigrant Worker, filed on behalf of P-2 nonimmigrants. In particular, the memo amends previous policy guidance stating that the Service Centers must contact USCIS Headquarters before adjudicating reciprocal exchange agreements that have not been approved previously.

The memo states that a petitioner must submit evidence that an appropriate labor organization in the U.S. was involved in negotiating, or has concurred with, the reciprocal exchange of the U.S. and foreign artists or entertainers. Given that the Service Centers possess the entire record, USCIS said, they are capable of determining if the reciprocal agreement meets the regulatory requirements. Effective immediately, service centers are not required to contact Headquarters if they encounter a reciprocal agreement not previously approved.

Because there is no requirement that P-2 entertainers be of exceptional ability, supporting documents are limited to basic items: the consultation, a copy of the reciprocal agreement, and evidence that the beneficiaries are subject to the reciprocal exchange.

Four P-2 reciprocal agreements have been negotiated: (1) between the American Federation of Musicians (U.S.) and the American Federation of Musicians (Canada); (2) between Actors’ Equity Association (U.S.) and the Canadian Actors’ Equity Association; (3) between Actors’ Equity Association (U.S.) and the British Actors’ Equity Association; and (4) between the International Council of Air Shows and the Canadian Air Show Association. If a reciprocal agreement is submitted other than these four, USCIS said, the adjudicator must review the agreement to determine if the agreement adheres to the regulatory standard. A list of any new reciprocal agreements is maintained at Headquarters.

The memo is available at http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2010/p-2-memo-03-11-10.pdf.

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12. Congress Opens H-1B Program to ‘All Smart Educated People’ Worldwide

In a stunning move, both houses of Congress passed surprise legislation with no debate on April 1, 2010, opening the H-1B program to “all smart educated people” worldwide and eliminating the cap. “Let’s just throw open the doors and see what happens,” Rep. John Boehner (R-Ohio) said. Sen. Chuck Schumer (D-NY) chirped, “Now this is what I call true bipartisanship.” Several members noted that his teeth seemed whiter.

The legislation, titled the “April Fool’s H-1B Act of 2010,” is expected to be signed immediately by President Obama now that he is done with health care reform and other distractions.

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13. ABIL Global: Temporary Foreign Workers – An Important Source of Labor Supply in Canada

Canada’s Temporary Foreign Worker Program enables Canadian employers to hire eligible foreign nationals to work for them in Canada for a specified duration, provided they can demonstrate that the employers cannot find a suitable Canadian/permanent resident to do the job and that the entry of the foreign national will not have a negative impact on the Canadian labor market. Employers must note that all individuals wishing to work in Canada require a work permit.

In most cases, unless an exemption is available (a discussion of which is outside the scope of this article), an employer must obtain a favorable labor market opinion (LMO) from Human Resources and Skills Development Canada/Service Canada (Service Canada) before the foreign national can apply to Citizenship and Immigration Canada (CIC) to obtain a work permit. An LMO is Service Canada’s opinion on the likely impact that hiring the foreign national will have on the Canadian labor market.

If an LMO is required to hire a particular foreign national, the prospective Canadian employer must submit an application to Service Canada setting out, among other things: the occupation for which the foreign national is required; details of the job offer including wages and working conditions that will apply to the foreign worker; advertising and recruitment efforts on the employer’s part to hire a Canadian or permanent resident to fill the position; the benefits that the foreign worker’s employment may have to the Canadian labor market; a copy of the employment contract (required in some cases); the number of Canadians/permanent residents currently employed in the organization; whether any Canadians/permanent residents were laid off in the 12 months preceding the application; and education, experience, and skills (including language skills) required for the position.

The advertising requirements with which an employer must comply depend on the skill level of the occupation for which the LMO is being sought, having regard to the National Occupational Classification (NOC) Skill Levels O, A, B, C, and D. Generally, some combination of advertising on the National Job Bank (or the equivalent in Saskatchewan, Quebec, or the Northwest Territories) and/or conducting similar recruitment activities consistent with the practice within the occupation (e.g., Internet job sites, national newspapers, consulting unions, newsletters, or professional associations) is required for a minimum number of days and for a specified duration prior to making the LMO application. However, the specific requirements vary depending on the occupation at issue and should be carefully considered in each individual case.

Employers should seek legal advice to ensure they comply with the requisite advertising standards applicable to their particular case, because failure to comply with the advertising efforts required for the particular NOC level and category at issue will result in an LMO being denied.

If a favorable LMO is issued, the employer must send a copy of the written confirmation to the worker along with a signed job offer (and employment contract, if required). The foreign national then applies to CIC for a work permit, the issuance of which depends on the foreign national meeting admissibility requirements and is within the discretion of the CIC officer and Canada Visa and Border Services officer assessing the work permit application and the foreign national’s entry into Canada, respectively.

Employers should be aware that any LMO issued to them expires 6 months from the issuance date and unless, within this time frame, the foreign national has applied to CIC for a work permit and certain other requirements have been met, the LMO will be deemed to expire and the employer will need to apply for a new LMO to hire a foreign worker.

Also, it should be noted that extensions of an LMO are no longer permitted. The elimination of the extension application is of particular importance to employers wishing to continue the employment of a foreign national beyond the duration of his or her current work permit. Employers should seek legal advice for their particular situation to ensure that they apply for a new LMO in a timely fashion so they can continue to employ their chosen foreign workers as desired.

Legal advice should also be sought regarding proposed changes to the Temporary Foreign Worker Program that will introduce a number of factors applicable to the assessment of the genuineness of an employer’s job offer of employment under this program. These proposed changes, if enacted, will lead to a more rigorous approach to the assessment of LMO and LMO-exempt cases.

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14. Publications and Items of Interest

New USCIS blog. U.S. Citizenship and Immigration Services (USCIS) has launched The Beacon, the agency’s official blog and newest tool that provides immigration-related information and “fosters an open dialogue with the public.”

USCIS said The Beacon is intended to provide an important resource for information about USCIS as well as “a forum through which readers can engage USCIS staff and others who are interested in immigration and naturalization issues.” USCIS said readers “are encouraged to submit comments, ideas, concerns, and constructive criticism.”

USCIS will review all comments before posting. Detailed guidance is provided on the blog under the comment policy. The Beacon is available at http://www.uscis.gov/blog.

H-1B supply and demand in 2010 and beyond. The National Foundation for American Policy (NFAP) has released a study, “H-1B Visas By the Numbers: 2010 and Beyond,” which concludes that demand for H-1Bs will contribute to employers likely reaching the annual cap in the new fiscal year. “The supply of H-1B visas has been exhausted during or before each of the past seven fiscal years, often leaving employers with no choice but to hire skilled foreign nationals outside the United States or see these scientists, engineers and professionals lost to competitors overseas,” said NFAP Executive Director Stuart Anderson. With the annual flow of H-1Bs representing only 0.06 percent of the U.S. labor force in 2009, the study notes, arguments that H-1B professionals overwhelm the U.S. workforce are not supported by the facts. Surveys of Indian and Chinese professionals who have left the U.S. show that visa constraints played a role in their decision to leave. This exodus, the study argues, will continue absent immigration law reform. Liberalizing H-1B and green card limitations would help employers innovate and create more jobs in the U.S., the study concludes.

The NFAP study is available at http://www.nfap.com/pdf/1003h1b.pdf.

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15. Recent News from ABIL Members

Mark Ivener (bio: https://www.abil.com/lawyers/lawyers-ivener.cfm) presented “EB-5 Investor Green Cards” to the Los Angeles County Bar Association’s EB-5 Seminar, held on March 20, 2010, in Los Angeles, California.

Maria Celebi (bio: https://www.abil.com/lawyers/lawyers-celebi.cfm) delivered a presentation on March 18, 2010, about changes in the Turkish Work Permit laws, on behalf of the American Chamber of Commerce in Turkey (ABFT) at an informational meeting and reception at the U.S. Consulate in Istanbul.

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16. 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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