News from the Alliance of Business Immigration Lawyers Vol. 6, No. 9B • September 15, 2010

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Headlines:

1. Dep‘t of State Updates Guidance on Medical Grounds of Inadmissibility – Following an update by the CDC to its technical instructions, the State Department has updated guidance on medical grounds of inadmissibility and issued a corresponding cable to the field.

2. USCIS Discusses Effects of Invalid Puerto Rico Birth Certificates on I-9 Process – After September 30, 2010, all certified copies of Puerto Rico birth certificates issued before July 1, 2010, will become invalid, but employers should not re-verify the employment eligibility of existing employees who presented a certified copy of a Puerto Rico birth certificate for I-9 purposes and whose employment eligibility was verified on the I-9 before October 1, 2010.

3. ICE Approves Special Relief for Certain F-1 Haitian Students – The suspension of certain regulatory requirements allows eligible Haitian F-1 students to obtain employment authorization, work an increased number of hours during the school term and, if necessary, reduce their course load while continuing to maintain their F-1 student status.

4. U.S. Mission in Canada Announces New Appointment Service for Visa Applicants Coming to U.S. – Applicants now must pay their machine-readable visa fee before scheduling an appointment.

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

6. Member News – Member News

7. Government Agency Links – Government Agency Links

Details:

1. Dep’t of State Updates Guidance on Medical Grounds of Inadmissibility

Following an update by the Centers for Disease Control and Prevention (CDC) to its technical instructions, the Department of State (DOS) has updated guidance in the Foreign Affairs Manual (FAM) concerning medical grounds of inadmissibility and issued a corresponding cable to the field.

The cable notes that the CDC updated the Technical Instructions for Physical or Mental Disorders with Associated Harmful Behavior and Substance Related Disorders (2010 MH TIs) effective June 1, 2010. Those instructions supersede all previous guidance on physical or mental disorders and substance related disorders. The major revisions in the 2010 MH TIs include changes to the methods of diagnosis of mental disorders and substance?related disorders, the definition and determination of remission, and the alcohol abuse evaluation. The DOS cable includes updates to 9 FAM resulting from this change to the technical instructions.

The CDC’s updated technical instructions for panel physicians are available at http://www.cdc.gov/immigrantrefugeehealth/exams/ti/panel/mental-panel-technical-instructions.html. The updated portion of the FAM is available at http://www.state.gov/documents/organization/86936.pdf.

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2. USCIS Discusses Effects of Invalid Puerto Rico Birth Certificates on I-9 Process

On July 1, 2010, the Vital Statistics Office of the Commonwealth of Puerto Rico began issuing new, more secure certified copies of birth certificates to U.S. citizens born in Puerto Rico because of a new Puerto Rico birth certificate law. After September 30, 2010, all certified copies of Puerto Rico birth certificates issued before July 1, 2010, will become invalid. However, U.S. Citizenship and Immigration Services (USCIS) noted in recent guidance that employers should not re-verify the employment eligibility of existing employees who presented a certified copy of a Puerto Rico birth certificate for I-9 purposes and whose employment eligibility was verified on the I-9 before October 1, 2010.

USCIS noted that the new law does not affect the U.S. citizenship status of individuals born in Puerto Rico. It only affects the validity of certified copies of Puerto Rico birth certificates. The guidance notes:

New Employees

  • All certified copies of Puerto Rico birth certificates are acceptable for Form I-9 purposes through September 30, 2010.
  • Beginning October 1, 2010, only certified copies of Puerto Rico birth certificates issued on or after July 1, 2010, are acceptable for Form I-9 purposes.
  • Beginning October 1, 2010, if an employee presents for List C a birth certificate issued by the Vital Statistics Office of the Commonwealth of Puerto Rico, the employer must look at the date that the certified copy of the birth certificate was issued to ensure that it is still valid.

Existing Employees

Employers must not re-verify the employment eligibility of existing employees who presented a certified copy of a Puerto Rico birth certificate for Form I-9 purposes and whose employment eligibility was verified on Form I-9 before October 1, 2010.

Federal Contractors

Employers awarded a federal contract that contains the Federal Acquisition Regulation (FAR) E-Verify clause have special Form I-9 rules for the verification of existing employees.

If completing new Forms I-9 for existing employees, certified copies of Puerto Rico birth certificates are acceptable as a List C document under the following circumstances:

  • Until October 1, 2010, all certified copies of Puerto Rico birth certificates are acceptable for Form I-9 purposes.
  • Beginning October 1, 2010, only certified copies of Puerto Rico birth certificates issued on or after July 1, 2010, are acceptable for Form I-9 purposes.

If updating existing Forms I-9, an employer must not ask an employee to present a new certified copy of a Puerto Rico birth certificate if the employee presented a certified copy of a birth certificate issued in Puerto Rico before July 1, 2010 that was valid and acceptable for the Form I-9 at the time it was presented.

See the E-Verify Supplemental Guide for Federal Contractors for more information on E-Verify and FAR requirements.

How will this law affect the retention of documents with Form I-9?

The new law prohibits Puerto Rico employers from keeping original certified copies of birth certificates issued in Puerto Rico but allows employers to keep photocopies of these documents. Employers who choose to make photocopies of documents that their employees present when completing Form I-9 must do so for all employees, regardless of national origin or citizenship status.

The USCIS guidance, released on September 9, 2010, is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=45e3285ca77fa210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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3. ICE Approves Special Relief for Certain F-1 Haitian Students

U.S. Immigration and Customs Enforcement (ICE) has approved special relief for certain F-1 Haitian students who have suffered severe economic hardship as result of the January 12, 2010, earthquake in Haiti. This relief applies only to students who were lawfully present in the United States in F-1 status on January 12, and enrolled in an institution that is certified by ICE’s Student and Exchange Visitor Program.

The suspension of certain regulatory requirements allows eligible Haitian F-1 students to obtain employment authorization, work an increased number of hours during the school term and, if necessary, reduce their course load while continuing to maintain their F-1 student status.

F-1 students granted employment authorization by means of the notice will be deemed to be engaged in a full course of study if they meet the minimum courseload requirements specified in the notice.

“We want to ensure that students from Haiti, who were here at the time of January’s tragic events, are able to concentrate on their studies without the worry of financial burdens created by the devastation of the earthquake,” said Louis Farrell, director of the Student and Exchange Visitor Program. “These students have the full support of SEVP [the Student and Exchange Visitor Program] and designated school officials for assistance.”

ICE manages SEVP and the Student and Exchange Visitor Information System.

An ICE press release announcing the relief is available at http://www.aila.org/content/default.aspx?bc=1016%7C6715%7C12053%7C26286%7C32985.

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4. U.S. Mission in Canada Announces New Appointment Service for Visa Applicants Coming to U.S.

The U.S. Mission in Canada is transitioning to a new appointment service for applicants applying for a visa to come to the United States. As of September 1, 2010, all services, including calling for information and scheduling an appointment, are being provided at no additional cost, with no requirement that applicants pay phone charges or use PIN numbers to access such services. Applicants should go to http://www.usvisa-info.com/en-CA/selfservice/ss_country_welcome to obtain information online or via telephone on how to start their application for a U.S. visa at a consular section in Canada.

Beginning September 1, 2010, applicants must pay their machine-readable visa (MRV) fee before scheduling an appointment. If the applicant has paid the MRV fee before September 1, 2010, but has not scheduled an appointment, there is a grace period from September 1, 2010, until October 1, 2010 during which the applicant can still use the MRV fee for appointment scheduling. If the applicant does not schedule an appointment before October 1, 2010, he or she will have to pay the MRV fee again through the new service to schedule an appointment.

The announcement and related links are available at http://www.consular.canada.usembassy.gov/new_appointment_service.asp.

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5. New Publications and Items of Interest

Congressional Budget Office publications. The Congressional Budget Office (CBO) has a variety of publications available on immigration topics. In the coming weeks, CBO plans to release updates to several past immigration publications. CBO said the research helps inform its understanding of the impact of immigration on the federal budget and the economy. For more information, see http://www.cbo.gov/publications/collections/collections.cfm?collect=7.

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6. Member News

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm), president of the Alliance of Business Immigration Lawyers (ABIL), recently appeared on National Public Radio to comment on the recent decline in undocumented persons in Georgia. Mr. Kuck attributed the decline to stricter law enforcement and the state of the economy in Georgia, along with changes in visa regulations. The audio is available at http://www.publicbroadcasting.net/wabe/news.newsmain/article/0/1/1696130/Atlanta./Report.Shows.Fewer.Illegal.Immigrants.in.Georgia.

Mr. Kuck also appeared on Fox News on September 2, 2010, to discuss immigration issues.

In a recent blog entry, Mr. Kuck commented on the Lozano v. Hazleton decision, in which the U.S. Court of Appeals for the Third Circuit ruled on Hazleton’s enforcement of two local ordinances attempting to regulate the employment of, and provision of rental housing to, undocumented persons. Among other things, the court said that “these provisions attempt to effectively ‘remove’ persons from Hazleton based on a snapshot of their current immigration status, rather than based on a federal order of removal. This is fundamentally inconsistent with the [Immigration and Nationality Act].” Mr. Kuck called the ruling “a significant victory for the constitution and for sane people everywhere,” but noted that it is not the end of the story. Mr. Kuck’s blog on this and other topics is available at http://musingsonimmigration.blogspot.com/2010/09/kris-kobach-and-anti-immigrationists.html.

ABIL members recently participated in drafting a comment from the American Immigration Lawyers Association on EB-1 adjudication standards that was sent to U.S. Citizenship and Immigration Services. The comment is available at http://xa.yimg.com/kq/groups/15854395/452608354/name/AILA%20Kazarian%20comment%209-3-10.pdf.

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7. 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

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News from the Alliance of Business Immigration Lawyers Vol. 6, No. 9A • September 01, 2010

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Headlines:

1. USCIS Implements H-1B, L-1 Fee Increases – Effective immediately, the provisions require an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010.

2. CBP Clarifies TN Extensions of Stay While Immigrant Petition Is Pending/Approved – U.S. Customs and Border Protection has clarified that certain Trade NAFTA (TN) applicants may be admitted and extend their stay while an immigrant petition is pending or approved.

3. Smartsoft Agrees To Pay Nearly $1 Million in Back Wages, Interest – Smartsoft agreed to pay 135 nonimmigrant workers after the Wage and Hour Division determined that the company violated the H-1B program’s rules.

4. State Dept. Introduces ESTA Fee for Visa Waiver Travelers – The total fee will be $14, with $4 to recover the cost of administering the Electronic System for Travel Authorization and $10 as mandated in the Travel Promotion Act of 2009.

5. DHS Expands List of Dependents of Foreign Officials Eligible for Work Authorization – The final rule expands the list of dependents eligible for employment authorization to include any individual who falls within a category designated by the Department of State as qualifying.

6. ABIL Global: UK Government Introduces Limits on Skilled Immigration – The new Coalition Government’s main immigration policy will mark the first-ever numerical limits on employment-related migration, which historically has been market-driven.

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. USCIS Implements H-1B, L-1 Fee Increases

On August 13, 2010, President Barack Obama signed into law provisions to increase certain H-1B and L-1 petition fees. Effective immediately, the provisions require an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010. The increases will remain in effect through September 30, 2014.

The additional fees apply to petitioners who employ 50 or more employees in the U.S. with more than 50 percent of their employees in the U.S. in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

  • initially to grant a worker nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or
  • to obtain authorization for a worker having such status to change employers.

USCIS is revising the Petition for a Nonimmigrant Worker (Form I-129) and instructions to comply with the new law (Public Law 111-230). To facilitate implementation, USCIS recommends that all H-1B, L-1A, and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why the new fee does not apply. USCIS requests that petitioners state whether the fee is required in bold capital letters at the top of the cover letter. If USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the law. An RFE may be required even if such evidence is submitted, if questions remain.

The additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=27eac9514bb8a210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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2. CBP Clarifies TN Extensions of Stay While Immigrant Petition Is Pending/Approved

A 2008 letter just recently released from U.S. Customs and Border Protection has clarified that Trade NAFTA (TN) applicants may be admitted and extend their stay while an immigrant petition is pending or approved, provided that they have not filed for adjustment or an immigrant visa – i.e., had an immigrant visa interview – and do not intend to immigrate on this specific visit. Once a TN files an application for an immigrant visa or adjustment of status, the letter notes, the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant.

This is consistent with a practice that has not always been followed. A 1996 letter sent by a legacy Immigration and Naturalization Service official stated that the fact that an TN applicant is the beneficiary of an approved I-140 petition is not by itself a reason to deny an application for adjustment, extension, or readmission, if the individual’s intent is to remain in the U.S. temporarily. Some CBP officers, however have not always followed that advice.

The recently released CBP letter was sent on April 21, 2008, from Paul M. Morris, Executive Director, CBP Admissibility and Passenger Programs, to Charles D. Herrington, Senior Assistant General Counsel, Micron Technology, Inc. The letter states that “the mere filing or approval of an immigrant petition does not automatically constitute intent on the part of the beneficiary to abandon his or her foreign residence. This would hold for a TN principal who may be riding on a spouse’s immigrant petition.”

The 2008 CBP letter is available at https://www.abil.com/articles/ABIL%20Report%20-%20TN.pdf.

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3. Smartsoft Agrees To Pay Nearly $1 Million in Back Wages, Interest

Smartsoft International Inc., a computer consulting company based in Suwanee, Georgia, has agreed to pay nearly $1 million in back wages and interest to 135 nonimmigrant workers temporarily employed by the company under the H-1B visa program, the Department of Labor (DOL) announced on August 17, 2010. The agency’s Office of the Solicitor reached the agreement following a determination by the Wage and Hour Division that the company violated the H-1B program’s rules. Smartsoft also has U.S. offices in Sunnyvale, California, and North Brunswick, New Jersey.

A Wage and Hour Division investigator determined that some employees were not paid any wages at the beginning of their employment, were paid on a part-time basis despite being hired under a full-time employment agreement, and were paid less than the prevailing wage applicable to the geographic locations where they performed their work.

The company contested the Wage and Hour Division’s conclusions and requested a formal hearing with the DOL’s Office of Administrative Law Judges. As part of the agreement, the company will drop any further challenges.

The DOL’s announcement is available at http://www.dol.gov/opa/media/press/whd/whd20101111.htm.

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4. State Dept. Introduces ESTA Fee for Visa Waiver Travelers

The Department of State released a cable to the field in August 2010 that provides information on implementation of the Travel Promotion Act of 2009 (TPA), signed into law on March 4, 2010, and fee collection for the Electronic System for Travel Authorization (ESTA). Under the TPA, fees collected from international travelers from Visa Waiver Program (VWP) countries, matched by private sector contributions, will fund the Corporation for Travel Promotion. The fees will be collected through the ESTA system, which the Department of Homeland Security (DHS) administers.

On August 6, 2010, the DHS announced an interim final rule that requires travelers from VWP countries to pay operational and travel promotion fees when applying for ESTA beginning September 8, 2010. The total fee will be $14, with $4 to recover the cost of administering the ESTA system and $10 as mandated in the TPA.

The announcement, which provides additional details, is available at http://travel.state.gov/pdf/Introduction%20of%20the%20ESTA%20fee%20for%20Visa%20Waiver%20Travelers%20-%20August2010.pdf.

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5. DHS Expands List of Dependents of Foreign Officials Eligible for Work Authorization

The Department of Homeland Security (DHS) published a final rule on August 10, 2010, amending its regulations governing the employment authorization for dependents of foreign officials classified as A-1, A-2, G-1, G-3, and G-4 nonimmigrants. The rule, effective August 9, 2010, expands the list of dependents eligible for employment authorization to include any individual who falls within a category designated by the Department of State (DOS) as qualifying.

U.S. Citizenship and Immigration Services (USCIS) will only issue employment authorization documents to those dependents of foreign officials who are recognized by DOS as qualifying. Qualifying dependents must fall within a bilateral work agreement or de facto arrangement, listed on DOS’s Web site at http://www.state.gov/m/dghr/flo/c24338.htm.

To apply for employment authorization documents, eligible dependents first must obtain an endorsement from DOS on an Interagency Record of Request, Form I-566. The individual must then file the I-566 along with an Application for Employment Authorization, Form I-765, with USCIS.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e9867236f9c5a210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. ABIL Global: UK Government Introduces Limits on Skilled Immigration

The United Kingdom (UK) announced on June 28, 2010, that it will introduce limits on the numbers of non-European Union (EU) migrants coming to the UK under both the highly skilled and the sponsored routes of the Points Based System (PBS). The new Coalition Government’s main immigration policy will mark the first-ever numerical limits on employment-related migration, which historically has been market-driven. The limits are a response to the levels of net migration to the UK, which have increased significantly since 2004 with the enlargement of the EU.

On July 19, 2010, the Government also introduced an interim limit, in effect until April 2011, aimed at reducing the number of certificates of sponsorship that each employer may assign to migrant workers under Tier 2 (General) and reducing the number of visas issued under the Tier 1 highly skilled category. Many employers, who had been allocated these certificates when they registered as licensed sponsors under the scheme, have had their allocation reduced significantly (in some cases to zero) and must now make requests for additional allocations of certificates, which the UK Border Agency states will be approved only “in exceptional circumstances.”

The interim cap is already the subject of a legal challenge. With those extending their status in the UK given priority within the limits, employers who have paid to be licensed sponsors and have taken on significant compliance duties are now left with uncertainty about whether they can sponsor new hires from outside the EU.

Permanent limits will be introduced in April 2011. The UK government is undertaking a consultation process on how the limits should be imposed and, in particular, whether this should be on a first-come, first-served basis and whether intracompany transferees and family members should be included in the overall limit. For the points-based highly skilled route, a system of pooling, under which the highest-scoring applicants are picked from the pool each month, is also being considered.

There are significant concerns among major UK business groups and companies that the limits will damage the UK’s reputation as a place to do business and its competitiveness in the global economy.

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7. New Publications and Items of Interest

2009 Yearbook of Immigration Statistics. This compendium of tables published by the Department of Homeland Security’s Office of Immigration Statistics provides data on foreign nationals who, during fiscal year 2009, were granted lawful permanent residence, were admitted into the United States on a temporary basis, applied for asylum or refugee status, or were naturalized. Also included are data on enforcement actions. The Yearbook is available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2009/ois_yb_2009.pdf. A report on enforcement actions in 2009 is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_2009.pdf.
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8. Recent News from ABIL Members

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in the Chicago Sun-Times (August 22, 2010) regarding asylum cases denied if applicants unwillingly aided terrorist organizations, even if under threat of death: “Unfortunately, the federal government has a very broad definition of material support. Even giving a cup of water or bowl of rice under duress can be deemed to be material support.” Mr. Yale-Loehr noted that it is common for the government to appeal such cases when the victim wins at the immigration judge level. “They’ll tell you it’s on a case-by-case basis but…the government does appeal too often,” he said. “If someone is successful at the immigration judge level, it’s well-deserved.” Mr. Yale-Loehr was also quoted in a related editorial published on the same day in the Chicago Sun-Times.

Articles on a variety of business immigration law topics by Alliance of Business Immigration Lawyers (ABIL) members are available on ABIL’s Web site at https://www.abil.com/newsletters_articles.cfm.

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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

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