News from the Alliance of Business Immigration Lawyers Vol. 6, No. 7A • July 01, 2010

Headlines:

1. Department of State Publishes Consular Fee Interim Rule, Reopens Comment Period – The Department received 1,797 comments in response to the proposed rule and has reopened the comment period for an additional 60 days, until August 27, 2010.

2. USCIS Issues Guidance to Employers on Documentation of Work Authorization for TPS Beneficiaries – The guidance notes, among other things, that if an employee presents a TPS-related EAD that is expired for completion of the I-9 verification process, the employer must accept it if it remains unexpired based on an auto-extension of the EAD by DHS.

3. Secretary of Labor Announces $78.4 Million for Farmworker Jobs Program – The program provides training and employment services to migrant and seasonal farmworkers.

4. U.S. Embassies, Consulates in China Temporarily Open on Saturdays – Growth in 2010 has been dramatic, with China’s 2010 visa load up 28 percent over the same period last year.

5. iCERT Glitches: DOL Responds – Until the problems are resolved, the Department of Labor advises anyone needing a PDF of an LCA that they cannot access to e-mail the LCA Help Desk.

6. ABIL Global: Update from Australia – Australia’s new Prime Minister, Julia Gillard, has signaled a major shift in immigration policy by declaring that she does not believe in a “big Australia.”

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

Details:

1. Department of State Publishes Consular Fee Interim Rule, Reopens Comment Period

In response to a previously published proposed rule and related supplementary notice, the Department of State received 1,797 comments and has reopened the comment period for an additional 60 days, until August 27, 2010. The interim final rule takes effect on July 13, 2010. Nonimmigrant visa fees, including fees for Machine-Readable Visas (MRVs) and Border Crossing Cards (BCCs), have been modified under a separate rule published in May 2010, and those modified fees are also reflected in the Schedule of Fees in the interim rule.

Among other fee changes:

The Department is increasing the application fee for a passport book for an adult (age 16 and older) from $55 to $70, and increasing the passport book security surcharge from $20 to $40. The application fee for a passport book for a minor (under age 16) will remain at $40.
Instead of a single fee for processing an immigrant visa, the Department has created fees depending on the category of visa. The application fee for an employment-based visa processed on the basis of an I-140 petition will be $720. The application fee for a family-based visa (immediate relative and preference) processed on the basis of an I-130, I-600, or I-800 petition will be $330. Other immigrant visa applications (including for diversity visa applicants) will have a fee of $305.
The Department is increasing the immigrant visa security surcharge, which all applicants except those statutorily exempted must pay, from $45 to $74.

The interim final rule, which includes a long discussion of the many comments received, is available at http://edocket.access.gpo.gov/2010/pdf/2010-15622.pdf.

2. USCIS Issues Guidance to Employers on Documentation of Work Authorization for TPS Beneficiaries

U.S. Citizenship and Immigration Services (USCIS) recently issued guidance on the documentation employers may accept and that temporary protected status (TPS) beneficiaries may present as evidence of employment eligibility.

The guidance notes that the expiration date on the card is usually the end of the TPS period for which the bearer last registered. When the Department of Homeland Security (DHS) extends a specific TPS country designation, it sometimes issues a Federal Register notice containing a temporary blanket automatic extension of expiring employment authorization documents (EADs) for TPS beneficiaries from that country to allow time for USCIS to issue new EADs with updated validity dates. The USCIS Web site and the Federal Register notice will describe this EAD automatic extension and will note the date when the auto-extension ends. The extension is typically for six months, but the time period may vary.

If an employee presents a TPS-related EAD that is expired for completion of the Form I-9 employment authorization verification process, the employer must accept it if it remains unexpired based on an auto-extension of the EAD by DHS as announced in a notice published in the Federal Register. The card must reasonably appear to be genuine and to relate to the employee presenting it to be acceptable.

The guidance includes an example of a valid TPS-related EAD and additional detailed instructions. It is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f876090684988210VgnVCM100000082ca60aRCRD&vgnextchannel=8a2f6d26d17df110VgnVCM1000004718190aRCRD.

3. Secretary of Labor Announces $78.4 Million for Farmworker Jobs Program

On June 24, 2010, U.S. Secretary of Labor Hilda L. Solis announced $78,410,000 in grant funds through the National Farmworker Jobs Program. The program provides training and employment services to migrant and seasonal farmworkers. The Department of Labor said the program “is designed to counter the impact of chronic unemployment and underemployment experienced by migrant and seasonal farmworkers who depend primarily on agricultural labor jobs.”

“Farmworkers do so much for families and for the nation’s economy as a whole. These hard-working members of our community deserve our support,” said Secretary Solis. “Today’s grants are an opportunity to help these workers as they upgrade their skills to improve their chances of advancement in their current employment or seek opportunities in other industries.”

The National Farmworker Jobs Program provides funding to community-based organizations and public agencies that assist farmworkers and their families in attaining greater economic stability. In addition to skills training, the program provides support services that help farmworkers participate in training programs or retain their agriculture employment. Services provided to farmworkers under the program include skills assessments, job search assistance, basic education remediation, case management, and on-the-job training. In addition, the program provides services such as child care, health care, and transportation that help workers keep their current jobs or successfully complete training programs.

Of the 50 states, 48 each have one grantee. California has five grantees. There are no grantees in Alaska. National Farmworker Jobs Program grants are awarded every two years. The new grants are continuations of 2009 funding.

The announcement, which includes a full list of grantees by state and the amounts granted, is available at http://www.dol.gov/opa/media/press/eta/eta20100878.htm.

4. U.S. Embassies, Consulates in China Temporarily Open on Saturdays

On June 18, 2010, the Department of State announced that the U.S. Embassy in Beijing, along with four U.S. consulates general across China, is opening on Saturdays “over the next few weeks” to accommodate thousands of Chinese travelers seeking visas to visit the U.S.

Trade, commerce, people-to-people exchanges, and tourism between China and the U.S. have grown dramatically over the past few years, the Department noted. In 2009, U.S. consulates in China issued more than 487,000 visas to Chinese travelers. Sixty-six percent were for business and tourism. Growth in 2010 has been even more dramatic, with China’s 2010 visa load up 28 percent over the same period last year.

The announcement is available at http://www.state.gov/r/pa/prs/ps/2010/06/143364.htm.

5. iCERT Glitches: DOL Responds

The American Immigration Lawyers Association recently queried the Department of Labor about difficulties in using the iCERT system, which is causing certain labor condition application cases in “initiated” status not to display online. A common reported problem is receiving an inappropriate warning when entering a prevailing wage source date. The DOL said it is working to correct the problems. Until they are resolved, the DOL advises anyone needing a PDF of an LCA that they cannot access to e-mail the LCA Help Desk at [email protected].
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6. ABIL Global: Update from Australia

Australia’s new Prime Minister, Julia Gillard, has signaled a major shift in immigration policy by declaring that she does not believe in a “big Australia.”

Former Prime Minister Kevin Rudd was in favor of population growth, with his government predicting it to hit around 36 million by 2050, largely through immigration. Australia’s population grew by two percent last year, mainly through migration – faster than any other developed country.

Since her appointment, Ms. Gillard has said, “Australia should not hurtle down the track towards a big population. I don’t support the idea of a big Australia with arbitrary targets of, say, a 40 million-strong Australia or a 36 million-strong Australia. We need to stop, take a breath and develop policies for a sustainable Australia. I support a population that our environment, our water, our soil, our roads and freeways, our buses, our trains and our services can sustain.”

But Ms. Gillard says that does not mean putting a stop to immigration altogether. Herself a migrant, Ms. Gillard said she would hold together an immigration policy that was pro-business and highly skilled, saying, “I don’t want business to be held back because they couldn’t find the right workers. That’s why skilled migration is so important.”

A recent poll showed 72 percent of people supported a rise in Australia’s population, but 69 percent wanted it to remain below 30 million people.

Just a month before Ms. Gillard’s appointment as Prime Minister, the Australian government had announced a new skilled migration program to address Australia’s medium and long-term skill needs. At the same time, the government confirmed that employers would be able to continue to solve their skill shortages through employer-sponsored programs that would be given priority processing with state and territory governments and given a role in sponsoring skilled migrants to solve local skill shortages.

A new Skilled Occupations List (SOL) comes into effect on July 1, 2010, and provides for just 181 occupations, which is a significant decrease from the old SOL containing 408 occupations. The new SOL represents a more demand-driven approach towards the skilled migration program, emphasizing high-value skills that will assist in addressing Australia’s labor market shortages. Under the old SOL, it was possible for a Ph.D. in environmental science from Harvard to miss out while a cook or hairdresser with low English skills who had completed a short technical course in Australia was able to proceed directly to permanent residence.

Occupations on the new SOL include doctors, nurses, dentists, accountants, engineers, IT professionals, and teachers (except primary school teachers), along with selected highly skilled trades, including electricians, carpenters, and motor mechanics.

By contrast, the demand-driven employer-sponsored temporary residence program allows businesses to sponsor over 620 managerial, professional, associate professional, and trade occupations. A key requirement for approval as a sponsor is that the business can demonstrate that it has met the training benchmark of spending at least one percent of gross payroll on training or upskilling its Australian workforce. Employers in regional Australia are able to sponsor not only these occupations but dozens of other occupations by entering into a Labour Agreement with the Australian government. For continued access to the program, a regional business must provide six monthly reports on efforts to recruit and train locals.

Employers can also nominate foreign workers for permanent residence in 430 occupations. A nominee must meet any of the following three criteria: (a) be paid in excess of A$165,000 p.a.; (b) be working in Australia for at least two years on one of a select range of temporary visas, including at least one with the nominating employer; or (c) have their skills or qualifications assessed by an approved assessing authority and have at least three years of relevant industry experience. Fully documented applications can result in permanent residence approvals in just two months.

By comparison with many other developed economies, Australia already shows signs of recovery from the global financial crisis. The government is keen to ensure that skills are readily available to facilitate a full recovery as well as deal with the looming issues that will flow from Australia’s aging population. To this end, newly elected Prime Minister Gillard has suggested that the government could pursue different migration policies for different parts of the country – the clearest indication yet that the skill needs of employers will be the driver of any new migration program.

7. New Publications and Items of Interest

Characteristics of H-1B specialty occupation workers. U.S. Citizenship and Immigration Services has released “Characteristics of H-1B Specialty Occupation Workers” for fiscal year (FY) 2009. Highlights of the report include:

The number of H-1B petitions filed decreased 15 percent from 288,764 in FY 2008 to 246,647 in FY 2009.
The number of H-1B petitions approved decreased 22 percent from 276,252 in FY 2008 to 214,271 in FY 2009.
Approximately 48 percent of all H-1B petitions approved in FY 2009 were for workers born in India.
Two-thirds of H-1B petitions approved in FY 2009 were for workers between the ages of 25 and 34.
Forty-one percent of H-1B petitions approved in FY 2009 were for workers with a bachelor’s degree, 40 percent had a master’s degree, 13 percent had a doctorate, and 6 percent were for workers with a professional degree.
About 41 percent of H-1B petitions approved in FY 2009 were for workers in computer-related occupations.
The median salary of beneficiaries of approved petitions increased to $64,000 in FY 2009, which was $4,000 more than in FY 2008.

The report is available at http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/H-1B/h1b-fy-09-characteristics.pdf.

Guide to InfoPass. InfoPass is a free online appointment-scheduling service of U.S. Citizenship and Immigration Services (USCIS). The agency has released a guide with tips on using the service. The guide is available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f183bd85ef149210VgnVCM100000082ca60aRCRD&vgnextchannel=f183bd85ef149210VgnVCM100000082ca60aRCRD.

8. Recent News From ABIL Members

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) will be awarded the American Immigration Lawyers Association’s (AILA) Edith Lowenstein Award for advancing the practice of immigration law on July 3, 2010 at AILA’s annual conference. Additional information on the 2010 awards is available at http://www.aila.org/content/default.aspx?docid=32427.

Mr. Paparelli recently argued on his blog that investor visa categories must be expanded. Mr. Paparelli noted, among other things, that “statutory and bureaucratic impediments to investment have produced all too predictable results.” He suggested that Congress consider more enticing, user-friendly investor visa categories. The blog is available at http://www.nationofimmigrators.com/?p=336.

ABIL and ABIL Global speakers/presenters at the upcoming 2010 AILA annual conference include:

Kehrela Hodkinson, who will speak on a panel on “Immigrant Waivers Around the Globe”
Mark Ivener, who will speak on “Marketing for Your Firm”
Charles Kuck, who will speak on “Media Policy or Media Frenzy? The Keys to Media Advocacy
Sharon Mehlman, who will moderate the USCIS open forum
Cyrus Mehta, who will be discussion leader of the “Pro Bono 101” panel and moderate a meeting with the Hon. Robert A. Katzmann of the Second Circuit, who will receive the Michael Maggio Memorial Pro Bono Award, and AILA pro bono advocates
Mr. Paparelli, who will speak on “Setting Up Immigration Policies and Processes for Corporate Clients”
William Z. Reich, who will speak on border processing of TN and L-1 applications

Steve Clark (bio: https://www.abil.com/lawyers/lawyers-clark.cfm) chaired a CLE for the Boston Bar Association on Corporate Reorganization and Immigration on May 18, 2010. The panel included a presentation on I-9 and E-verify issues by ABIL President Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm). Other members of ABIL firms (e.g., Chin and Curtis) discussed the role of counsel and written immigration policies in the reorganization process.

Mr. Clark will deliver a presentation on “Post-Filing Issues in PERM Labor Certifications” at AILA’s National Conference on July 1, 2010, in National Harbor, Maryland.

Steve Trow (bio: https://www.abil.com/lawyers/lawyers-trow.cfm) presented on “U.S. Immigration and Citizenship Planning for High Net Worth Clients” at the Canadian national conference of the Society of Trust and Estate Practitioners in Toronto on June 7. His presentation included U.S. visa planning for investors and entrepreneurs, immigration strategies in relation to the U.S. exit tax, identifying clients who are not aware that they are U.S. citizens, and terminating U.S. citizenship by expatriation.

Mr. Trow also presented on “Immigration and Citizenship Planning for U.S. Citizens and Long Term Residents Who Expatriate” at a panel discussion hosted by the International Tax Committee of the District of Columbia Bar Association on June 22. The panel included four attorneys from the Internal Revenue Service who provided guidance on taxation of expatriates under Section 877A of the Internal Revenue Code.

Steve Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) will deliver a presentation on appeals to the USCIS’ Administrative Appeals Office at AILA’s National Conference on July 2, 2010, in National Harbor, Maryland.

Mr. Yale-Loehr co-authored an article with Mr. Paparelli entitled “Investing in America Through the E-2 and EB-5 Visa Categories” in the June 22, 2010, issue of the New York Law Journal.

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