News from the Alliance of Business Immigration Lawyers Vol. 6, No. 8A • August 01, 2010

Headlines:

1. ICE I-9 Final Rule Allows for Electronic Signatures, Scanning, Storage – Employers and recruiters or referrers for a fee who are required to complete and retain the Employment Eligibility Verification Form may now sign the form electronically and retain it in an electronic format.

2. USCIS Clarifies ‘O’ Validity Period When Gap Exists in Itinerary, Promises 2-Week Turnaround for O and P Visas – The memo notes that there is no statutory or regulatory authority for the proposition that a gap of a certain number of days in an itinerary automatically indicates a new event; USCIS dramatically lowered the expected turnaround time for O and P visas.

3. Preliminary Injunction Blocks Key Provisions of Arizona Immigration Statute – A key portion of the new statute may conflict with a Supreme Court ruling that states cannot create their own immigration systems, a federal judge states; the New York City Bar calls the statute unconstitutional.

4. USCIS Extends Initial Registration Period for Haitian TPS – The new notice extends the TPS registration period through January 18, 2011.

5. American Immigration Lawyers Association Sues DHS, USCIS Over H-1B Transparency – The FOIA litigation centers on the government’s H-1B visa review and processing procedures.

6. USCIS Proposes New Standardized Fee Waiver Form – USCIS has proposed for the first time a standardized fee waiver form, and seeks public comments.

7. ABIL Global: Temporary Business Visas in Peru – This type of visa and migratory status allows a foreign citizen to carry out activities in Peru common to a businessperson, not a worker.

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

9. Recent News From ABIL Members – Recent News From ABIL Members

10. Government Agency Links – Government Agency Links

Details:

1. ICE I-9 Final Rule Allows for Electronic Signatures, Scanning, Storage

U.S. Immigration and Customs Enforcement (ICE) has issued a final rule, effective August 23, 2010, providing that employers and recruiters or referrers for a fee who are required to complete and retain the Employment Eligibility Verification Form (I-9) may sign the form electronically and retain it in an electronic format. The final rule makes minor changes to an interim final rule promulgated in 2006.

The final rule’s supplementary information notes that the completed I-9 form is not filed with the Department of Homeland Security (DHS) but is retained by the employer, who must make it available for inspection upon a request by ICE investigators or other authorized federal officials. Employers must keep the I-9 in their own files for three years after the date of hire of the employee or one year after the date that employment is terminated, whichever is later. Recruiters or referrers for a fee must keep each I-9 for three years after the date of hire. Failure to properly complete and retain each I-9 may subject the employer or recruiter or referrer for a fee to civil money penalties.

Among other things, the final rule clarifies that:

Employers must complete the I-9 within three business (not calendar) days;
Employers may use paper, electronic systems, or a combination of paper and electronic systems;
Employers may change electronic storage systems as long as the systems meet the performance requirements of the regulations;
Employers need not retain audit trails recording each time an I-9 is electronically viewed, but only when the I-9 is created, completed, updated, modified, altered, or corrected; and
Employers may provide or transmit a confirmation of an I-9 transaction, but are not required to do so unless the employee requests a copy.

The final rule, which includes “performance standards” for electronic filing processes and systems, is available at http://edocket.access.gpo.gov/2010/pdf/2010-17806.pdf.

2. USCIS Clarifies ‘O’ Validity Period When Gap Exists in Itinerary, Promises 2-Week Turnaround for O and P Visas

There have been several recent developments with respect to O and P visas:

On July 20, 2010, U.S. Citizenship and Immigration Services (USCIS) issued clarifying guidance on the “O” nonimmigrant visa petition with regard to determining the appropriate validity period of an approvable petition when a gap exists between two or more events reflected in the itinerary.

The memo explains that the validity dates for the O-1 visa classification are defined by the specific period of time required to perform or participate in a specific event. When reviewing an O-1 petition, the length of time between the scheduled events, also known as a gap, has sometimes been viewed as a gauge to determine whether an itinerary represented one continuous “event” or separate events requiring separate petitions.

In certain cases where there has been a significant gap between events, adjudicators have sometimes concluded that a single petition was filed for separate events rather than a continuous event. In such cases, the petition may have been approved only for a validity period equal to the length of time needed to accomplish what appeared to be the initial specific event rather than the continuous event as represented by the petition.

The memo notes that there is no statutory or regulatory authority for the proposition that a gap of a certain number of days in an itinerary automatically indicates a new event. “The regulations speak in terms of tours and multiple appearances as meeting the ‘event’ definition.” The statutory and regulatory background provides flexibility on the length of validity period that may be granted, the memo states:

“The statute and regulations allow for an approval of an O-1 petition for a period necessary to accomplish the event or activity, not to exceed 3 years. Adjudicators should evaluate the totality of the evidence submitted to determine if the activities described in the itinerary are related in such a way that they would be considered an ‘event’ for purposes of the validity period. When the validity period requested is established though the submission of appropriate evidence, Service Centers should approve a petition for the length of the validity period requested where the law and regulations permit.”

The memo is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/July/guidance-O-petition-gap_memo-07-20-10.pdf.

In other news, USCIS promised during a public meeting with stakeholders on July 20, 2010, that processing times for regularly filed O and P visas for performers and athletes will not exceed 14 days. In some previous cases, adjudications reportedly have taken up to four months, and delays have led to last-minute scrambles and missed performances. Although arts groups say more needs to be done, many were hopeful about this recent development. The Performing Arts Alliance said it was “extremely pleased with this week’s breakthrough.”

For more, see http://www.nytimes.com/2010/07/23/arts/music/23visa.html and http://www.tcg.org/advocacy/alert.cfm.

3. Preliminary Injunction Blocks Key Provisions of Arizona Immigration Statute

Following the Department of Justice’s challenge to Arizona’s recently passed immigration law, S.B. 1070, U.S. District Judge Susan Bolton of Phoenix, Arizona, issued a preliminary injunction against key provisions of the new statute. While not striking down the entire law, she blocked the provisions (1) requiring that an officer attempt to determine the immigration status of a person stopped, detained, or arrested if there is a “reasonable suspicion” that the person is unlawfully present, and requiring verification of the immigration status of any person arrested before release; (2) creating a crime for the failure to apply for or carry alien registration papers; (3) creating a crime for an unauthorized alien to solicit, apply for, or perform work; and (4) authorizing the warrantless arrest of a person where there is probable cause to believe the person has committed a public offense that makes him or her removable from the U.S.

Meanwhile, the New York City Bar Association issued a report concluding that the new law is unconstitutional under the Supremacy Clause and the First, Fourth, and Fourteenth Amendments.

The NYC Bar report notes that 10 states are currently contemplating similar legislation, including Utah, Georgia, Colorado, Maryland, Ohio, North Carolina, Texas, Missouri, Oklahoma, and Nebraska. The NYC Bar said that the substantive content of these state statutes, as manifested by S.B. 1070, “promotes racial profiling while infringing upon the exclusive role of the federal government to regulate immigration.” The NYC Bar noted that the Arizona statute “adopts a adopts a parallel immigration enforcement program to the one maintained by the federal government through the pretext of conflating civil and criminal provisions of the Immigration and Nationality Act.” At the same time, the NYC Bar said, “the statute fails on due process and Fourth Amendment grounds, in that it offers insufficient guidance to officials administering it as to when ‘reasonable suspicions’ of unlawful presence exist, and will target the foreign-born.”

The report urged states to resist emulating Arizona’s statute, and noted that “[f]ailure to enact comprehensive immigration reform is providing the fuel for states to overreach in this area of exclusive federal regulation.”

The preliminary injunction is available at http://images.bimedia.net/documents/SB1070-order.pdf. A report on Judge Bolton’s opinion is available at http://www.latimes.com/news/nationworld/nation/la-na-arizona-immigration-20100723,0,3498774.story. The New York City Bar report is available at http://www.nycbar.org/pdf/report/uploads/20071951-ReportonArizonaImmigrationLawSB1070.pdf. The Justice Department’s announcement is available at http://www.justice.gov/opa/pr/2010/July/10-opa-776.html. Links to the complaint filed and other case documents are provided at the bottom of that page.

4. USCIS Extends Initial Registration Period for Haitian TPS

On January 21, 2010, the Department of Homeland Security (DHS) designated Haiti under the temporary protected status (TPS) program for a period of 18 months. DHS initially established a 180-day registration period from January 21, 2010, through July 20, 2010. A new notice extends the TPS registration period through January 18, 2011.

The notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-17116.pdf.

5. American Immigration Lawyers Association Sues DHS, USCIS Over H-1B Transparency

The American Immigration Council’s Legal Action Center (LAC) filed a lawsuit on July 20, 2010, against the Department of Homeland Security (DHS) and U.S. Citizenship and Immigration Services (USCIS) on behalf of the American Immigration Lawyers Association (AILA), seeking the public release of records on agency policies and procedures for the H-1B visa program.

AILA had pursued disclosure of the documents through two Freedom of Information Act (FOIA) requests, both of which were denied. In its complaint filed in the U.S. District Court for the District of Columbia, AILA seeks the court’s intervention to compel the government to release the requested records.

The FOIA litigation centers on the government’s H-1B visa review and processing procedures. The H-1B program, administered by USCIS, allows U.S. businesses to temporarily employ foreign workers, such as scientists, engineers, and computer programmers, in occupations that require theoretical or technical expertise in specialized fields. Since 2008, the LAC noted, USCIS has implemented new, more stringent procedures for review and processing and has dramatically increased the frequency of unannounced H-1B worksite inspections, which are expected to reach 25,000 in 2010. Yet “USCIS has kept secret the rules and guidelines related to the review process,” the LAC said. “The dearth of publicly available information on the government’s heightened scrutiny of H-1B applications makes it particularly difficult for businesses to anticipate and meet agency expectations during the application process.”

“It is in the public and the agency’s interest to release the documents sought by AILA,” said Mary Kenney, an attorney at the American Immigration Council’s Legal Action Center. “The documents will help employers and foreign workers who seek immigration benefits comply with the law. Further, the agency violated FOIA when it issued wholesale denials of AILA’s FOIA requests.” AILA is also represented in the litigation by Steptoe & Johnson LLP.

The announcement is available at http://www.aila.org/content/default.aspx?docid=32657.

6. USCIS Proposes New Standardized Fee Waiver Form

U.S. Citizenship and Immigration Services (USCIS) has proposed for the first time a standardized fee waiver form. USCIS seeks public comments on the proposed new Form I-912, Request for Individual Fee Waiver.

Details and instructions for responding to the request for comments are available at http://edocket.access.gpo.gov/2010/pdf/2010-17114.pdf. The proposed form is available at http://www.regulations.gov/search/Regs/home.html#documentDetail?R=0900006480b1a9c1. More information is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=0fb5ac6b49cd9210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=2e15ac6b49cd9210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

7. ABIL Global: Temporary Business Visas in Peru

To visit Peru to carry out business activities, some aspects of the consular temporary business visa must be taken into account. The temporary business visa enables foreign citizens to perform activities typical of a businessperson in Peru.

The Peruvian “Aliens Law” defines “Business” migratory status as:

Business: Those who come to the country with no intention to reside and in order to perform business, legal or similar arrangements. They are permitted to sign contracts or settlements. They cannot perform remunerated or profit-making activities or earn any income from a Peruvian source, except for fees as directors of companies domiciled in Peru or fees as lecturers or international consultants by virtue of a service agreement. Such service agreement shall not exceed thirty (30) consecutive or accumulated calendar days, within a period of twelve (12) months. [Paragraph (k), section 11, Legislative Decree No. 703 modified by Legislative Decree No. 1043, Aliens Law]

The maximum period of authorized stay for a consular temporary business visa is 183 calendar days, non-extendable internally in Peru.

The consular temporary business visa must be obtained in a Peruvian consulate abroad, complying with the requirements established by the pertinent consulate; i.e., the consulate where the foreign citizen resides or, in absence of a consulate in the city of residence, one nearby.

This type of visa and migratory status allows a foreign citizen to carry out activities in Peru common to a businessperson, not a worker. A temporary business visa does not authorize rendering subordinate services as an employee (worker) of a local company or as an appointed worker of a company abroad.

Permitted activities with a business visa include:

Performing business arrangements
Performing legal or similar arrangements
Attending business meetings or discussions with Peruvian affiliates or related companies
Attending sales calls to potential Peruvian clients, provided the alien represents a commercial entity outside Peru
Observing operations of a Peruvian affiliate or client
Attending “fact-finding” meetings with a Peruvian affiliate or clients
Attending seminars
Signing documents, contracts, or settlements
Acting as an international lecturer or consultant
Acting as a director of a company domiciled in Peru
Collecting data or information regarding investments and similar activities
Supervising business or investments

A business visa does not allow the holder to perform labor activities in Peru or to earn income from a Peruvian source. Training or acting in an advisory capacity does not qualify as a business, legal, or similar arrangement.

In sum, if any foreign company is considering sending some of its employees to carry out business activities in Peru as businesspersons, they must enter Peru on a consular temporary business visa according to Peru’s Aliens Law.

8. New Publications and Items of Interest

Federal Register changes. The Office of the Federal Register (OFR) and the Government Printing Office (GPO) are moving the Federal Register home page and the Public Inspection Desk to http://www.OFR.gov. Please reset your bookmarks before July 26, 2010. The OFR said this change is necessary to make way for a new edition of the daily Federal Register, an unofficial “Web 2.0” prototype, which will be hosted on http://FederalRegister.gov.

The Federal Register home page on http://www.OFR.gov will continue to feature the electronic Public Inspection Desk (http://www.ofr.gov/inspection.aspx), the Privacy Act Issuances for 2007 and 2009 (http://www.ofr.gov/Privacy/AGENCIES.aspx), and the OFR Catalog, which links to all Federal Register publications and services.

As of July 26, 2010, the FederalRegister.gov Web site displays an XML prototype of the daily Federal Register. It is not an official legal edition of the Federal Register, the OFR said, and does not replace the official (print or electronic) version on GPO’s Federal Digital System (http://www.FDsys.gov). OFR and GPO are posting the unofficial XML prototype of the Federal Register to gather public feedback, with the aim of granting it official status in the future. It will remain an unofficial informational resource until the Administrative Committee of the Federal Register issues a regulation granting it official legal status.

A related news report is available at http://www.federalnewsradio.com/?nid=35&sid=2004175.

SEVIS quarterly update. The Student and Exchange Visitor Information System (SEVIS) has released a general summary quarterly review. The report notes that since the program’s inception, the total volume of data in SEVIS continues to grow. On June 30, 2010, SEVIS contained records for 1,084,122 active nonimmigrant students, exchange visitors, and their dependents. The total number of records for all F-1, M-1, and J-1 visa holders has increased to approximately 7.6million.

The report is available at http://www.ice.gov/doclib/sevis/pdf/quarterly_report_ending_june2010.pdf.

Visa number allotments and the cut-off date process. The Department of State’s Visa Office has released “The Operation of the Immigrant Numerical Control System,” which explains how immigrant visas subject to numerical limitations are allotted and the determination of cut-off dates for the Visa Bulletin. The document, which also clarifies some frequently misunderstood points, is available at http://travel.state.gov/visa/bulletin/bulletin_1360.html.

Immigration statistics Web redesign. The Department of Homeland Security’s Office of Immigration Statistics (OIS) has recently restructured its Web site. After reviewing user feedback, OIS implemented a new design that organizes reports and data by subject area, as opposed to product type, and that is intended to allow users more efficient access to immigration reports and data. The new site is available at http://www.dhs.gov/files/statistics/immigration.shtm.

9. Recent News From ABIL Members

Steve Garfinkel (bio: https://www.abil.com/lawyers/lawyers-garfinkel.cfm) spoke at the Charlotte Area Society for Human Resource Management (Charlotte SHRM) on July 12, 2010. He presented an Immigration Update session at the SHRM Midyear Legal Update.

Mr. Garfinkel also served as a panelist on July 23, 2010, at the fifth annual Schloss Summer Lecture, “The Great Immigration Debate: Strangers Among Us.”

Steve Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in the Wall Street Journal in the July 29, 2010, edition in an article about the injunction blocking key provisions of Arizona’s new immigration statute, Mr. Yale-Loehr cautioned against jumping to conclusions. “[The judge] only ruled for the government as a preliminary matter,” he said. “Her final ruling may differ. And higher courts could overturn today’s decision.” The article appears at http://online.wsj.com/article/SB10001424052748703940904575395314079925720.html.

Mr. Yale-Loehr also was quoted in a Wall Street Journal article on July 15, 2010. The article concerns issues brought on by the Department of Homeland Security’s recent crackdown on the hiring of undocumented immigrants. Mr. Yale-Loehr said, “The message is: Employers beware. You need to worry just as much about asking for too many immigration documents as you do about not asking for enough.” The article can be found at: http://online.wsj.com/article/SB10001424052748703283004575363303262763196.html?KEYWORDS=yale-loehr.

Mr. Yale-Loehr also contributed essays to a New York Times forum on the Arizona immigration law. See http://www.nytimes.com/roomfordebate/2010/07/28/whats-next-on-arizonas-immigration-law?hp.

Steve Trow (bio: https://www.abil.com/lawyers/lawyers-trow.cfm) recently commented on Arizona’s new law also: “Congress dropped the ball on immigration reform, but that doesn’t give Arizona the right to run onto the field and pick it up. DOJ needs to get Arizona off the field, then Congress needs to fix our broken immigration system.” See http://www.bisnow.com/washington_dc_legal_news_story.php?p=9529.

10. Government Agency Links

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

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

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

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