News from the Alliance of Business Immigration Lawyers Vol. 6, No. 6A • June 01, 2010
1. USCIS Revises Employment Authorization Document – The EAD now includes a machine-readable zone on the back of the card.
2. State Dept. Raises Consular Fees for Nonimmigrant Visas and BCCs – The interim final rule, effective June 4, 2010, also reopens the comment period on the raised fees for an additional 60 days.
3. DHS Eliminates Paper Arrival/Departure Form for VWP Participants – Automated processing for U.S. airports will be activated on a rolling basis over the next several months.
4. State Dept. Updates Student and Exchange Visitor Visa Guidance – Visa appointments for students and exchange visitors should be provided on a priority basis, and admission to a lesser?known academic institution, a community college, or an English language program is not in itself a reason for refusal.
5. Not-So-Good Vibrations? USCIS Implements Business Verification Program – VIBE (Verification Initiative for Business Enterprises) is intended to provide USCIS with an alternative means of verifying the financial viability of companies petitioning to employ foreign workers.
6. ABIL Global: Update From Germany/Europe – The EU Commission wants to introduce a simplified, accelerated, and EU-standard admission process for persons who have special professional qualifications, an employment contract with a company based in the EU, and earnings at least triple the national minimum wage.
7. New Publications and Items of Interest – New Publications and Items of Interest
8. Recent News From ABIL Members – Recent News From ABIL Members
9. Government Agency Links – Government Agency Links
1. USCIS Revises Employment Authorization Document
U.S. Citizenship and Immigration Services (USCIS) announced on May 25, 2010, that it has revised the Employment Authorization Document (EAD) (Form I-766) to incorporate the addition of a machine-readable zone on the back of the card.
USCIS began issuing the revised EADs on May 11, 2010. USCIS also removed the two-dimensional bar code on the back of the card and moved the informational box of text to just beneath the magnetic stripe on the card. The revised card retains all of its existing security features.
This follows USCIS’s announcement in early May that it is replacing Permanent Resident Cards (green cards) with a redesigned card that incorporates new security features. The agency is replacing green cards already in circulation as individuals apply for renewal or replacement.
USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=12f0e37359fc8210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
2. State Dept. Raises Consular Fees for Nonimmigrant Visas and BCCs
The Department of State has published an interim final rule, effective June 4, 2010, that raises from $131 to $140 the fee charged for processing an application for most non-petition-based nonimmigrant visas (Machine-Readable Visas or MRVs) and adult Border Crossing Cards (BCCs). The rule also provides new tiers of the application fee for certain categories of petition-based nonimmigrant visas and treaty trader and investor visas (all of which are also MRVs). Finally, the rule increases the $13 BCC fee charged to Mexican citizen minors who apply in Mexico, and whose parent or guardian already has a BCC or is applying for one, by raising that fee to $14 by virtue of a congressionally mandated surcharge that went into effect in 2009.
The rule reopens the comment period on these fees for an additional 60 days. Written comments must be received by July 19, 2010. The Department will consider any further comments, and whether to make changes to the rule in response to them, before publishing a final rule.
The interim final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-12125.pdf.
3. DHS Eliminates Paper Arrival/Departure Form for VWP Participants
On May 20, 2010, the Department of Homeland Security (DHS) announced the elimination of the paper arrival/departure form (Form I-94W) for authorized travelers from Visa Waiver Program (VWP) countries. Following a seven-month pilot program on Air New Zealand flights from Auckland to Los Angeles International Airport, the use of paper I-94W forms will be eliminated for VWP travelers with an approved Electronic System for Travel Authorization (ESTA) arriving in the U.S. at all airports by the end of this summer. U.S. Customs and Border Protection (CBP) will activate automated processing for U.S. airports on a rolling basis over the next several months.
Applying for an ESTA became mandatory on January 12, 2009, for all nationals of VWP countries before boarding a carrier to travel by air or sea to the U.S. This requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa.
CBP recommends that VWP travelers submit ESTA applications as soon as they begin making travel plans. ESTA applications may be submitted at any time before travel. ESTAs are valid for two years or until the applicant’s passport expires. CBP has received more than 19 million ESTA applications from citizens of VWP countries.
The DHS announcement is available at http://www.dhs.gov/ynews/releases/pr_1274366942074.shtm.
4. State Dept. Updates Student and Exchange Visitor Visa Guidance
The Department of State has released a cable updating guidance to the field for student and exchange visitor visa applications. The cable reminds posts that visa appointments for students and exchange visitors should be provided on a priority basis. Admission to a lesser?known academic institution, a community college, or an English language program is not in itself a reason for refusal, the cable notes, but all applicants should be able to explain their school choice and educational plan. “Which school a student chose is not nearly as important as why he/she chose it. ”
The cable urges posts to report suspect schools. The cable also notes that Summer Work and Travel Program participants should return from their programs in time for the beginning of fall classes, even though the Department of Homeland Security allows them a 30?day grace period before they have to leave the U.S. The cable also provides clarification on flight training, study incidental to visits for pleasure, and the Student and Exchange Visitor Information System (SEVIS).
The cable also notes that the Bureau of Consular Affairs continues to receive complaints that some consular officers are unreceptive to applications from prospective community college students. This is at odds with Consular Affairs policy, the cable notes.
The cable is available at http://travel.state.gov/pdf/ExchangeVisitorVisaUpdate-April2010.pdf.
5. Not-So-Good Vibrations? USCIS Implements Business Verification Program
U.S. Citizenship and Immigration Services’ (USCIS) Office of Public Engagement held an information-sharing session on May 27, 2010, in Washington, DC, on a Web-based tool provided under a USCIS contract with Dun & Bradstreet, Inc., that the agency said “will help bring uniformity and consistency to the processing of employment-based immigrant and nonimmigrant petitions.” During the session, Service Center Operations staff provided a presentation of the “VIBE” program, which is being implemented this year at Service Centers.
VIBE (Verification Initiative for Business Enterprises) is intended to provide USCIS with an alternative means of verifying the financial viability of companies petitioning to employ foreign workers, along with other information about the company, such as the type of business and number of employees. USCIS announced in September 2009 that the contract had been awarded to Dun & Bradstreet for $35.5 million. A USCIS synopsis issued in April 2009 notes that:
…the Government requires licensing terms that allow the information provided to be retained in adjudicator files in perpetuity. Further, this information may be viewed and used by other Government agencies for legal proceedings, such as court hearings or similar administrative hearing activities related to granting or denying immigration benefits. It has also been determined through market research that industry does not provide warranty terms regarding the accuracy of information provided. The Government may potentially use the information in a court of law, as such, it must be supportable.
The award notice is available at https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=43fee0e75bdb345ad3010794271abd2b&_cview=1. A related letter from USCIS Director Alejandro Mayorkas to Sen. Charles Grassley is available at http://www.nationofimmigrators.com/wp-content/uploads/2009/12/Mayorkas%20letter%20to%20Grassley%20re%20H-1B%20visa%20fraud.pdf. A blog commentary on the VIBE program is available at http://blogs.ilw.com/angelopaparelli/2009/12/bad-bad-bad-immigration-vibrations-from-uscis.html.
6. ABIL Global: Update From Germany/Europe
German residence and work permit regulations are a genuinely complex matter. Therefore, regulations have to be carefully observed when conducting international transfers. Even if the German labor market is basically still affected by the so-called ban on recruitment (i.e., the categorical ban on the recruitment of foreign employees), in practice foreign workers can be employed under certain circumstances.
In particular, the employment of highly qualified staff is facilitated in numerous ways. Nevertheless, there is a considerable accumulated need against the background of intensified global competition for the most qualified labor. Therefore, for example, the earnings level for executives and the highly skilled, which has been 86.400 € per year (until December 31, 2008) and presently amounts to 66.000 € per year (as of January 1, 2010), should be reduced further to enable medium-sized companies to employ such labor to a larger extent. There is also hope because of the intended omission of the examination of the labor market for engineers from the new EU member states.
Because Germany had elections in September 2009 resulting in a new coalition government between the Christian Democrats (CDU) and the Free Democratic Party (FDP), further reforms or amendments of the existing laws on a larger scale are unlikely in the short- to midterm. Further developments remain to be seen. In the meantime, the following excerpt from the coalition agreement may give a hint of the route the government is likely to take:
We want to increase the attractiveness of Germany for highly qualified staff and steer immigration to Germany. Administrative barriers must be reduced for qualified staff. Access for highly qualified foreigners and foreign experts must be adjusted to the requirements of the German labor market and structured according to coherent, clear, transparent, and weighted criteria based on need, qualification, and integration potential. In addition, we plan to review the regulations on self-employment, jobs for students with a German university degree, jobs for artists, athletes, and seasonal workers; and to strive for simplification. [Translated, edited.]
The same applies at the European Union (EU) level, where the EU “Blue Card,” which had been put up for discussion in 2007, was recently adopted in May 2009 (Council Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment; May 25, 2009). The EU Commission, with particular emphasis on work and residence permits for highly qualified employees from third countries (non-EU), intends to increase the competitiveness of the European economy via the Blue Card. The Blue Card is expected to attract experts to Europe instead of the U.S., Australia, or Canada. According to an analysis by the EU, the latter have been the preferred work countries until now.
The EU Commission wants to introduce a simplified, accelerated, and EU-standard admission process for persons who have special professional qualifications, an employment contract with a company based in the EU, and earnings at least triple the national minimum wage. By means of the Blue Card, highly qualified staff will be granted a residence and work permit that includes special rights; e.g., if accompanied by family members. The directive is intended to encourage further mobility within the EU of highly qualified individuals. It acknowledges labor shortages and so its provisions are intended to:
foster admission and mobility — for the purposes of highly qualified employment — of third-country nationals for stays of more than three months, in order to make the [EU] Community more attractive to such workers from around the world and sustain its competitiveness and economic growth. To reach these goals, it is necessary to facilitate the admission of highly qualified workers and their families by establishing a fast-track admission procedure and by granting them equal social and economic rights as nationals of the host Member State in a number of areas. It is also necessary to take into account the priorities, labor market needs and reception capacities of the Member States.
7. New Publications and Items of Interest
Dr. Sunil Mithas and Dr. Henry C. Lucas, Jr., professors at the University of Maryland, have authored a study published by the Institute for Operations Research and the Management Sciences, “Are Foreign IT Workers Cheaper? U.S. Visa Policies and Compensation of Information Technology Professionals.” The study finds that foreign IT professionals (those without U.S. citizenship and those without H-1B or other work visas) actually earn a salary premium when compared to U.S. citizen IT professionals when controlling for human capital attributes. The article is available from http://www.informs.org/.
The Department of Labor has released a new online advisor to help employers and others understand how to comply with requirements under the H-1B visa program. The advisor describes the program’s standards and provides detailed information about employers’ and workers’ rights and responsibilities. It outlines notification requirements, monetary issues, worksite issues, recordkeeping duties, worker protections, and enforcement issues. The advisor focuses solely on compliance with the requirements enforced by the Department’s Wage and Hour Division. It does not review the process for participating in the program or for invoking H-1B visa portability.
The Department’s announcement is available at http://www.dol.gov/opa/media/press/asp/oasp20100563.htm. The advisor is available at http://www.dol.gov/elaws/h1b.htm.
8. Recent News From ABIL Members
Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) was quoted in the May 28, 2010, edition of the New York Times on E-2 visas. The article concerns Dean and Laura Franks, a British couple who ran a Maine eatery for nine years before being forced to leave the U.S. because their E-2 visa was not renewed. Calling such cases “the forgotten story of immigration,” Mr. Paparelli noted that “[t]he headlines deal with Arizona and border crossings, but these are real people too. This is what happens when you play by the rules.” For more, see http://www.nytimes.com/2010/05/30/us/30visas.html.
Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) recently discussed the origins of the EB-5 immigrant investor program; the importance of EB-5 regional centers; and the ambiguities, complexities, challenges, and opportunities of the program. The LexisNexis podcast is available at http://www.lexisnexis.com/Community/emergingissues/blogs/podcasts2/archive/2010/05/20/LexisNexis_AE00_-Emerging-Issues-Law-Community-Podcast-featuring-Dan-Kowalski-and-Stephen-Yale_2D00_Loehr-on-the-EB_2D00_5-Investor-Visa-Program.aspx.
9. 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/bulletin/bulletin_1360.html