News from the Alliance of Business Immigration Lawyers Vol. 6, No. 11B • November 15, 2010

Headlines:

1. USCIS Issues Reminder on New Fees – The new fee schedule will take effect on Tuesday, November 23, 2010.

2. ETA Extends Comment Period on H-2B Wage Methodology Rule – The agency has extended the comment period until November 12, 2010.

3. DOS Final Rule Revises Exchange Student Regs – DOS is revising existing secondary school student regulations and is adopting a new training requirement for all organizational representatives who place and/or monitor students with host families.

4. DHS Extends TPS Designation for Somalia – DHS has extended the designation of Somalia for TPS through September 17, 2012.

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. USCIS Issues Reminder on New Fees

U.S. Citizenship and Immigration Services (USCIS) issued a reminder that its new fee schedule will take effect on Tuesday, November 23, 2010. Applications or petitions postmarked or otherwise filed on or after this date must include the new fee or they will be rejected. As a practical matter, any applications filed after Friday, November 19 might be subject to the fee increases, depending on when the application is received.

USCIS published the new fee schedule in the Federal Register on September 24, 2010, following a review of public comments received after publication of the proposed rule this past summer. The new fee schedule increases application and petition fees by an average of about 10 percent but does not increase the naturalization application fee.

A table listing the old and new fees is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=92c5e116de9eb210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-23725.pdf.

2. ETA Extends Comment Period on H-2B Wage Methodology Rule

On October 5, 2010, the Department of Labor’s Employment and Training Administration (ETA) issued a proposed rule governing the certification of the employment of nonimmigrant workers in temporary or seasonal non-agricultural employment and the enforcement of related obligations of employers. The proposed rule provided a comment period through November 4, 2010. The agency extended the comment period for an additional 8 days, to November 12, 2010.

The proposed rule would revise the methodology by which the Department calculates the H-2B prevailing wage. It would establish that the prevailing wage will be the highest of: (1) wages established under an agreed-upon collective bargaining agreement (CBA); (2) a wage rate established under the Davis-Bacon Act (DBA) or McNamara-O’Hara Service Contract Act (SCA) for that occupation in the area of intended employment; and (3) the arithmetic mean wage rate established by Occupational Employment Statistics (OES) for that occupation in the area of intended employment. The employer would be required to pay its workers at least the highest of the prevailing wage as determined by the National Processing Center (NPC) (currently the National Prevailing Wage Center), the federal minimum wage, the state minimum wage, or the local minimum wage.

The proposed rule also would eliminate the use of the current four-tiered wage structure that differentiates wage tiers by level of experience, education, and supervision required to perform the job duties. The Department proposes instead a single OES wage level for H-2B job opportunities based on the arithmetic mean of the OES wage data for the job opportunities in the area of intended employment.

The Department anticipates further rulemaking that will address other aspects of the H-2B temporary worker program. Interested persons are invited to submit written comments on the proposed rule by November 12, 2010, using one of the methods set forth in the extension notice, which is available at http://edocket.access.gpo.gov/2010/pdf/2010-27602.pdf.

3. DOS Final Rule Revises Exchange Student Regs

In a final rule effective November 26, 2010, the Department of State is revising existing secondary school student regulations regarding the screening, selection, school enrollment, orientation, and quality assurance monitoring of exchange students, host families, and field staff. The Department also is adopting a new training requirement for all organizational representatives who place and/or monitor students with host families.

A proposed requirement to conduct FBI fingerprint-based criminal background checks will not be implemented now. The agency said it continues to examine that proposed requirement and a subsequent final rule will be forthcoming.

The final rule governs the designated exchange visitor programs under which foreign secondary school students (ages 15 to 18 1/2) may study in the U.S. at accredited public or private secondary schools for an academic semester or year while living with American host families or residing at accredited U.S. boarding schools.

Compliance with a new requirement for a mandated training module for local coordinator training will not be required until the development of an online training platform is completed and launched, which is anticipated to be in January 2011. A subsequent Federal Register notice will be published when that occurs.

The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-27200.pdf.

4. DHS Extends TPS Designation for Somalia

The Department of Homeland Security (DHS) has extended the designation of Somalia for temporary protected status (TPS) for 18 months, from its current expiration date of March 17, 2011, through September 17, 2012. DHS determined that an 18-month extension is warranted because conditions in Somalia prompting the TPS designation continue to exist. Armed conflict in Somalia is ongoing. Due to that conflict and “other extraordinary and temporary conditions,” requiring the return of eligible individuals with TPS to Somalia “would pose a serious threat to their personal safety,” the agency said.

The notice also sets forth procedures necessary for nationals of Somalia (or those having no nationality who last habitually resided in Somalia) with TPS to re-register and to apply for an extension of their employment authorization documents (EADs) with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who previously registered for TPS under the designation of Somalia and whose applications have been granted or remain pending. Certain nationals of Somalia (or those having no nationality who last habitually resided in Somalia) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions.

USCIS will issue new EADs with a September 17, 2012, expiration date to eligible TPS beneficiaries who timely re-register and apply for EADs. The 60-day re-registration period begins November 2, 2010, and will run until January 3, 2011.

The USCIS notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-27613.pdf. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1dffae8ac980c210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. Additional information on TPS for Somalians can be found at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=928f3e4d77d73210VgnVCM100000082ca60aRCRD&vgnextchannel=928f3e4d77d73210VgnVCM100000082ca60aRCRD.

5. New Publications and Items of Interest

GAO report on closed civil criminal cases involving fraud and abuse against H-2B workers. The Government Accountability Office (GAO) recently released a report, “H-2B Visa Program: Closed Civil Criminal Cases Illustrate Instances of H-2B Workers Being Targets of Fraud and Abuse.” The GAO reviewed 10 closed cases over the last five years that involved H-2B employers and recruiters who violated various labor laws or settled allegations of violations outside of court. Violations included employers failing to pay promised wages, overtime, or both; employers charging H-2B workers exorbitant fees; and employers and recruiters submitting fraudulent documentation to government officials. For example, in one case H-2B workers became indebted to their employer through a series of arbitrary charges. The employer then forced workers to take second jobs at local fast food restaurants to pay these debts. GAO personnel found that most recruiters they called or visited posing as prospective H-2B employers and workers did not encourage the GAO’s undercover agents to violate program rules. Of the 18 recruiters in multiple states the GAO contacted, H-2B recruiters on three calls provided suggestions on how to circumvent program rules, such as providing “good excuses” to help “weed out” prospective U.S. workers or recouping costs through “off-the-book” transactions to avoid restrictions on pay deductions. Additionally, the GAO found that H-2B workers contacted during the site visits to their housing locations were generally pleased with their living and working conditions. However, at one location the H-2B workers were afraid to speak with outside individuals for fear of retaliation from their employer.

The GAO report is available at http://www.gao.gov/new.items/d101053.pdf.

New packet for naturalized U.S. citizens. U.S. Citizenship and Immigration Services announced that all new citizens will receive a U.S. Citizenship Welcome Packet during their naturalization oath ceremony. Along with practical information on applying for a U.S. passport, establishing and obtaining Social Security records, getting involved in the local community, and petitioning for family members, the packet includes a congratulatory letter from the President; a flier on important information for new citizens; the Citizen’s Almanac, a pocket-size edition of the Declaration of Independence and the U.S. Constitution, a passport application, a naturalization certificate holder, and a voter’s guide to federal elections.

Naturalization rates among IRCA immigrants. The Department of Homeland Security’s Office of Immigration Statistics has released a fact sheet, “Naturalization Rates Among IRCA Immigrants: A 2009 Update.” The fact sheet presents various statistics on those who immigrated to the U.S. under the Immigration Reform and Control Act of 1986 (IRCA). Among other things, the data show that immigrants who obtained permanent residence through IRCA provisions had lower rates of naturalization than immigrants who obtained status through other provisions. The fact sheet is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/irca-natz-fs-2009.pdf.

J-1 final rule guidance. The American Immigration Council’s International Exchange Center has released a practice advisory on the final rule for J-1 trainee and intern programs, available at http://www.internationalexchangecenter.org/sites/default/files/images/Practice_Advisory_Final_rule.pdf. The practice advisory notes that the significant changes under the final rule include:

Clarification of the required academic background for interns.
Elimination of the requirement that sponsors must obtain a Dun & Bradstreet report on all host companies.
Clarification that social work falling under Public Administration and Social Service Professions is allowed; clinical social work is not allowed.
Clarification that dental services are not allowed.
Elimination of training or internships for counter help positions.
Clarification that telephone interviews are appropriate when video conferencing is not available for the purpose of screening English language proficiency.

Immigration, offshoring and jobs. The National Bureau of Economic Research has published “Immigration, Offshoring and American Jobs.” The paper predicts that while cheaper offshoring reduces the share of natives among less skilled workers, cheaper immigration reduces the share of offshored jobs. Moreover, since both phenomena have a positive “cost-savings” effect, they may leave unaffected, or even increase, total native employment of less-skilled workers. The paper also predicts that offshoring will push natives toward jobs that are more intensive in communication-interactive skills and away from those that are manual and routine-intensive. The authors tested their predictions on data for 58 U.S. manufacturing industries over the period 2000-2007 and found evidence that immigration has a positive net effect on native employment, while offshoring has no effect on it. They also found that offshoring has pushed natives toward more communication-intensive tasks and has pushed immigrants away from them. The paper is available at http://www.nber.org/papers/w16439 to eligible entities or subscribers.

6. Member News

Steve Clark (bio: https://www.abil.com/lawyers/lawyers-clark.cfm) co-chaired the American Immigration Lawyers Association’s conference on PERM in New Orleans on October 22, 2010. He led a discussion of best practices on drafting labor certification applications, including dealing with employees who have educational degrees that differ from U.S. educational requirements.

Kehrela Hodkinson (bio: https://www.abil.com/lawyers/lawyers-hodkinson.cfm) participated as a panelist in a presentation, “Non-Immigrant Visa Inadmissibility and Waivers to the U.S.,” during the American Immigration Lawyers Association’s Rome District Chapter Autumn Conference in Paris, France.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) recently posted a new blog entry, “The Next Goal – Eviscerating the 14th Amendment.” The blog discusses the effort to eliminate so-called “birthright” citizenship. The blog is available at http://ailaleadershipblog.org/2010/11/04/the-next-goal-eviscerating-the-14th-amendment/.

Sharon Mehlman (bio: https://www.abil.com/lawyers/lawyers-mehlman.cfm) spoke on November 12, 2010, at the American Immigration Lawyers Association’s 23^rd Annual California Chapters Conference in Monterey on a USCIS update panel covering the Service Centers, local office issues, lockboxes, and the NCSC.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) participated as a panelist on the Child Status Protection Act at the American Immigration Lawyers Association’s Texas, New Mexico, Oklahoma Chapter conference at Playa del Carmen, Mexico on November 5, 2010.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) recently posted a new blog entry, “Rethinking Immigration: California Dreamin’.” Among other things, Mr. Paparelli notes that “[t]he competitive position of the U.S. will continue to slide until improvements to the legal immigration system are made that enable innovators, entrepreneurs and strivers to grow the economy.” The blog is available at http://www.nationofimmigrators.com/?p=368.

Steve Trow (bio: https://www.abil.com/lawyers/lawyers-trow.cfm) chaired a conference on U.S. Immigration and Citizenship Planning for High Net Worth Clients organized by Moodys LLP Tax Advisors in Calgary, Alberta on October 26, 2010. His presentations at the conference covered Nonimmigrant Visas, Permanent Resident Status, EB-5 Immigrant Investor Visas, Green Cards and the Exit Tax, Spotting and Advising Accidental American Citizens, and Terminating American Citizenship.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in the October 30, 2010, edition of the Washington Post. An article about the Arizona immigration law controversy, “Appeals Court To Mull States’ Role in Immigration,” discussed “preemption,” where federal law trumps state law. Mr. Yale-Loehr said the Arizona statute “puts that issue front and center.”

Mr. Yale-Loehr also was quoted in the November 10, 2010, edition of Slate Magazine online. An article entitled “Give Me Your Tired, Your Poor, Your Huddled Entrepreneurs” discussed EB-5 visa legislation, immigrant entrepreneurs, and the nexus between immigration by entrepreneurs starting new companies and job creation in the U.S. The article notes that many visas for entrepreneurs currently are temporary. “We don’t have a true startup visa on the green-card side of the immigration equation,” Mr. Yale-Loehr noted.

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