SOUTH AFRICA: Transferring Employees and Their Families to South Africa

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A significant amendment to the law is expected in the next few months that will affect transferring employees and their families to South Africa.

Transferring Employees and Their Families to South Africa

Under current South African immigration law, a company can transfer or deploy one or more of its employees to a company that is “operating in South Africa.” This is on condition that the two companies are in a holding, subsidiary, or “affiliate relationship.”

There are three key conditions to qualify for such a permit. First, the person must be an existing employee who will return to his or her employment at the offshore company at the end of the term of the deployment. Second, the company in South Africa must in fact be operating. And third, there must be a qualifying relationship between the two companies. The term “affiliate relationship” is not defined and deliberately allows for considerable flexibility. These permits are usually issued for a two-year period and cannot be renewed or extended.

The permit requirements fall into two broad categories: those that are specific to the intra-company transfer work permit and those that are required for any permit that authorizes a period of residence in South Africa of more than three months. The key requirements specific to the intra-company transfer work permit include, among other things, a copy of the employee’s offshore contract and proof that he or she has the skill needed for the assignment in South Africa.

All family members (assuming they are not South African citizens or permanent residents) accompanying the foreign national to be transferred, no matter their ages, must apply for appropriate permits to reside in South Africa.

As may be suggested by the “transfer” permit’s name, South Africa’s permit system is activity-specific. So if the family includes dependents who will be studying at a tertiary institution or a school (but excluding a pre-school), they must obtain study permits before they can attend the institution. If the dependent is not attending school or is home-schooling, he or she needs a long term visitor permit to accompany the holder of the transfer permit.

For purposes of residence in South Africa, the Immigration Act recognizes non-formalized life partnerships and does not discriminate based on sexual orientation. Couples do not need to be married or in a civil union for purposes of obtaining a residence permit. But the couple will need to prove the fact of the spousal relationship. The term “spouse” refers to the partner, whether married or not. The relationship must be monogamous. The spouse also must obtain a long-term visitor permit to accompany the holder of the transfer permit.

There is no special dispensation for the spouse who wishes to study, be employed, or be self-employed, while in South Africa. They (and/or the place of learning or employer) must comply with all the relevant prescribed requirements of the appropriate temporary residence permit. This is the case even if the spouse wishes to work (or remain working) for an employer back home even where the company does not have a presence in South Africa. [There is a special dispensation for persons who are in a spousal relationship with a South African citizen or permanent resident. Please consult your Alliance of Business Immigration Lawyers attorney about this.]

Under current policy, the South African Department of Home Affairs prefers that people seeking to take up a post in South Africa (and their families), should apply for the appropriate permit at the nearest South African embassy or consulate and have obtained the permit(s) before they leave for South Africa. Application can be made for all the appropriate permits (for the transferee, the spouse, and the children) at the same time. The consequent permit, if approved, will be endorsed into the applicant’s passport.

The general rule is that foreign nationals must at all times have a permit in their passport that accurately describes the purpose and period for which they have been authorized to enter and remain in South Africa. If those circumstances change, the person must apply to the Department of Home Affairs for authorization to remain in the country under those changed circumstances.

A significant amendment to South African law is expected in the next few months. It is imperative that proper and comprehensive advice be sought from a skilled immigration attorney.

INDIA: Tightening of In-Country Compliance and Registration Requirements

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Under the Indian Bureau of Immigration’s general policy, all foreign nationals who arrive on a visa valid for more than 180 days and who expect to remain in India for more than 180 consecutive days during a single visit or stay must register at the designated registration office in the place of residence.

Until recently, employment visa holders intending to remain in India for more than 180 consecutive days were required to register (unless otherwise indicated on their visa endorsement). However, now all foreign nationals with employment or visas that are valid for more than 180 days must register with the Foreigner Regional Registration Office (FRRO) within 14 days of arrival in India.

Accompanying spouses and dependents who intend to reside in India also must register. Such individuals now must submit additional documents at the time of registration. For example, a spouse on a dependent visa must present the original civil marriage certificate authenticated with an apostille. In cases where a country does not issue apostilles, the certificate must be legalized by an appropriate Indian consular post. A dependent spouse also must provide a “no work” letter to the FRRO confirming that he or she will not engage in any productive work while residing in India. Currently, the FRROs are not asking for authenticated birth certificates for dependent children, but this could change with little or no advance notice.

List of Mandatory Documents

The following documents are required at almost all the FRROs when registering on an employment visa:

  1. Original valid passports and Indian employment visa;
  2. Four passport-size photographs;
  3. Three copies of the applicant’s passport;
  4. Copy of applicant’s Indian visa;
  5. A letter from the Indian employer, requesting registration;
  6. A letter of undertaking signed by an Indian national working with the company in India assuming full responsibility for the applicant;
  7. Proof of police verification;
  8. Proof of residence address;
  9. Evidence of C-Form compliance if staying at a hotel;
  10. Employment contract;
  11. Proof of compliance with Indian income tax if the applicant has worked in India in the past; and
  12. A copy of the applicant’s earlier registration booklet if he or she has been registered in the past.

The following additional documents are required at some FRROs:

  1. Details of the applicant’s movable and immovable property;
  2. A copy of the applicant’s Permanent Account Number (PAN) card or proof of having applied for a PAN card;
  3. Monthly salary certificate;
  4. A certificate from the Indian company stating that no qualified Indians were available for the proffered job;
  5. A copy of a major utility bill from the landlord of the leased premises where the applicant is residing (if applicable);
  6. A copy of the Indian company registration certificate; and
  7. Evidence of Tenant Information Form compliance.

The following documents are required at almost all the FRROs when registering on an entry (dependent) visa:

  1. Original valid passport and Indian employment visa;
  2. Four passport-size photographs;
  3. Three copies of the applicant’s passport;
  4. Copy of applicant’s Indian visa;
  5. A letter from the principal applicant’s Indian employer, requesting registration of the dependent;
  6. A letter of undertaking signed by an Indian national working with the company in India assuming full responsibility for the applicant;
  7. Proof of police verification;
  8. Proof of residence address;
  9. Copy of marriage certificate (needs an apostille for some FRROs); and
  10. A copy of the applicant’s earlier registration booklet if he or she has been registered in the past.

The following additional documents are required at some FRROs:

  1. Details of the applicant’s movable and immovable property;
  2. A copy of a major utility bill from the landlord of the leased premises where the applicant is residing (if applicable);
  3. Evidence of Tenant Information Form compliance.
  4. Declaration from spouse that he or she will not undertake any business or work-related activities while in India.

Visa Extensions

Per recent changes, all employment visa applications must include the following additional documents:

Foreign nationals granted employment visas before October 2010, who earned an annual salary of less than US $25,000 (approximately INR 1,145,000) must ask their Indian host company for a salary attestation declaration from the appropriate Employee’s Provident Fund Organization (EPFO) confirming that the employee will earn at least US $25,000 for the coming year.

The Indian host company must supply a confirmation letter that no qualified Indian national workers are readily available to assume the employment visa holder’s current position as their specialized knowledge services continue to be required in India.

An employment visa holder must submit a photocopy of his or her PAN card or evidence of official registration for a PAN card, along with a duly signed and stamped income letter by the Indian host company confirming the itemized remuneration paid to the foreign national employee, including his or her annual base salary, allowances, and any bonuses to be paid for the coming year.

Spouses renewing their dependent visas must submit their authenticated marriage certificate. Those whose renewal applications are already filed with the FRRO should check whether their marriage certificate will be required. Those submitting their renewal applications but who do not possess their marriage certificate should submit a letter confirming that they will obtain appropriate certification as soon as possible.

Dependents also must submit a “no work” letter to the FRRO confirming that they will not engage in any productive work while resident in India.

Documentation Tip

All FRROs have not publicized or updated their websites to reflect these changes and seem to be asking for additional documents in an ad hoc fashion. It is best to be prepared with all the documents that may be needed, irrespective of the specific requirements of any FRRO, so that they are available if required at short notice.

HONG KONG: Hong Kong made changes to Capital Investment Entrant Scheme (CIES)

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The Hong Kong Capital Investment Entrant Scheme has been extremely popular. Successful applicants can benefit from one of the premier financial centers of the world with a robust economy and a low, simple and predictable tax regime. Initially launched by the Hong Kong Special Administrative Region (SAR) government in October 2003 to attract investments from qualifying individuals who wished to obtain Hong Kong residency through making a capital investment without the need to establish or join in a business in Hong Kong, as of the end of 2010, 16,600 applications had been received and 8,924 applicants had invested a total of $63.31 billion, representing an average of HKD $7.09 million per entrant.

On October 14, 2010, responding to Hong Kong’s Chief Executive Donald Tsang’s concerns about surging property prices n Hong Kong expressed in his annual policy address, the government temporarily removed real estate from the permissible investment asset classes under the CIES because 40% of the investments in the first half of 2010 had been in real estate.

More specifically, the amendments included the following changes:

i) The threshold of investment (and net assets/net equity requirement) for admission to Hong Kong under the CIES was raised from HK$6.5 million (USD $834,000) to HKD $10 million (USD $1.28M);

ii) Real estate was suspended temporarily as a class of Permissible Investment Assets (PIA) under the CIES; and

iii) An insurer authorized to carry on Class C business as specified in Part 2 of the First Schedule to the Hong Kong Insurance Companies Ordinance became eligible, in addition to banks, to act as a financial intermediary for the purpose of the CIES

The government believes that despite the amendments, the scheme remains competitive compared with the investment programs of other jurisdictions, and promised that the investment threshold (and net assets/net equity requirement) will be reviewed once every three years. With respect to the temporary suspension of real estate as a class of PIA, this decision will be assessed at the next regular review, or earlier as necessary.

In the short term, the beneficiary of these changes is the U.S. EB-5 program, which has become relatively “cheap” at USD $500,000, since Canada’s investment threshold is currently CDN $800,000, while effective January 1, 2011, the Singapore Monetary Authority’s Financial Investor Scheme (FIS) requires applicants to place S $10 million in assets for a continuous period of five years, up from a minimum of S $5 million previously, with a financial institution regulated by the Monetary Authority of Singapore, although a portion – up to $2 million – can be used to buy private residential properties.

AUSTRALIA: Foreign Investment Review Board (FIRB) crackdowns on purchase of homes in Australia by certain temporary visa holders

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Increased FIRB screening and compliance measures, including a hotline and a pilot monitoring system, have been introduced to ensure that temporary visa holders comply with FIRB requirements. Statistics show 15 real estate transactions were prevented by FIRB and a further 73 proposed residential real estate purchases have been voluntarily withdrawn in the last 9 months.

News from the Alliance of Business Immigration Lawyers Vol. 7, No. 1B • January 15, 2011

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Headlines:

1. USCIS Revises I-9 Manual for Employers – The handbook includes expanded guidance on lawful permanent residents, refugees and asylees, and acceptable documents for employees in TPS.

2. E-Verify Update: USCIS Updates Web Interface, Launches Newsletter; House Hearings Soon – USCIS has made changes to its E-Verify Web interface, and has launched a newsletter on E-Verify developments.

3. Visa Numbers Move Slowly – Priority dates in several employment-based categories moved ahead, although not by much overall.

4. USCIS Releases H-1B, H-2B Cap Counts – ABIL recommends filing petitions now.

5. DHS Adds New Countries to H-2A, H-2B Programs; Drops Indonesia – Of the 53 countries on the list, 15 were designated for the first time this year.

6. USCIS Releases Pending Employment-Based Adjustment of Status Inventory – The report shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.

7. USCIS Issues Policy Memo Disallowing Concurrent Filings for Special Immigrant Religious Workers – Any I-485 where the underlying basis for adjustment is an I-360 petition for a special immigrant religious worker must be filed based on an approved I-360 petition.

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links

Details:

1. USCIS Revises I-9 Manual for Employers

U.S. Citizenship and Immigration Services (USCIS) has revised its Handbook for Employers: Instructions for Completing Form I-9 (M-274). Revised as of January 5, 2011, the handbook includes expanded guidance on lawful permanent residents, refugees and asylees, and acceptable documents for employees in temporary protected status (TPS).

The following is a summary of key changes in the revised handbook:

Employees With TPS

TPS is a temporary immigration benefit that allows foreign nationals from designated countries to reside and work in the United States for a temporary period of time. The Department of Homeland Security (DHS) may extend a country’s TPS designation and issue a Federal Register notice to automatically extend expiring employment authorization documents (EADs) for TPS beneficiaries. Thus, a TPS beneficiary may choose to present an EAD that is expired on its face so long as it has been automatically extended. The challenge to employers is how to determine whether a TPS beneficiary’s expired EAD is valid as a List A document.

The handbook now provides guidance on how to identify a TPS EAD, how to determine whether the DHS has issued an automatic extension of expiring EADs, and how to explain that the TPS status was extended on the Form I-9 (Employment Eligibility Verification).

J-1 Exchange Visitors & F-1 Students, including F-1s Changing to H-1B Status (“The Cap Gap”)

The handbook provides a detailed explanation on how to complete the I-9 for those individuals in J-1 exchange visitor status and F-1 and M-1 student status. Additionally, the handbook explains how to complete the I-9 for F-1 students who are changing status to H-1B and are eligible for a “cap-gap” extension of status and employment authorization. The handbook confirms that the student’s employment authorization will remain valid through September 30 of the calendar year for which the H-1B is filed, so long as the student’s H-1B status will begin on October 1. Additionally, the handbook advises that an employer must re-verify a student’s Form I-20 (Certificate of Eligibility for Nonimmigrant (F-1) Student Status). The I-20 must show that the cap-gap extension was endorsed by the student’s designated school official. Re-verification must be done no later than October 1.

H-1B Employees Changing Employers (Portability)

The handbook now states that an employee in valid H-1B status who changes (ports) to a new employer can begin to work with the new employer upon filing an H-1B petition with USCIS. The prior version of the handbook required the porting H-1B employee to obtain a Form I-797 (Receipt Notice) from USCIS before beginning work with the new employer. This approach created considerable delay because it often takes USCIS weeks to issue the official I-797.

The new version of the handbook explains that a porting H-1B employee may begin employment by presenting his or her Form I-94/I-94A (Arrival-Departure Record) issued for employment with the previous employer, along with his or her foreign passport, as a List A document. The employer should write “AC21” on the I-9, record the date that the new H-1B petition was submitted to USCIS in the margin next to Section 2 of the I-9, and attach documentation as specified in the handbook.

Extensions of Status

The handbook explains that an employee with a petition for extension of status timely filed before the employee’s work authorization expires is eligible for continued work authorization for up to 240 days beyond the expiration date of the authorization as long as the extension remains pending. The handbook provides a detailed explanation of how to complete the I-9 and the documentation to be attached for individuals in E-1, E-2, H-1B, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1 and TN status who have timely filed extensions with the same employer.

Where an H-1B extension is timely filed and the extension remains pending, the employer should write “240-Day Ext.” and record the date the employer submitted the Form I-129 (Petition for a Nonimmigrant Worker) to USCIS in the margin of the I-9 next to Section 2.

Additionally, the handbook expands upon what documentation should be added to the I-9. Previously, the employer was advised to attach only the I-797. Now, the handbook adds that the employer should keep the following documents with the I-9 in this situation:

  1. A copy of the new I-129 that was filed for the extension;
  2. Proof of payment for the filing of the new I-129; and
  3. Evidence that the new I-129 was mailed to USCIS.
  4. After the extension is filed, USCIS will issue a receipt notice (Form I-797(C)), which should also then be added and kept with the I-9.

When the extension of stay is approved, the employer should record in Section 3 the document title, number, and expiration date listed. The handbook adds that the employer must give the employee the I-94A, which is evidence of the employee’s employment authorized nonimmigrant status.

Interruptions in Employment

The handbook now provides guidance to employers who are uncertain about whether a new I-9 is required after an employee has experienced a brief interruption in employment. The handbook provides examples of situations which include “continuing employment,” such as maternity or paternity leave, leaves of absence, transfer from one business unit to another business unit of the same employer, or the same employer at another location. An employer is not required to complete a new I-9 in these situations so long as there is a reasonable expectation of employment at all times.

Electronic Retention of Forms I-9 and Documentation of Electronic Storage Systems

The handbook offers expanded guidance to employers who use paper, electronic systems, or a combination of paper and electronic systems to keep I-9 forms. Employers must follow certain guidelines, outlined in the handbook, should they choose to keep their I-9s in an electronic generation or storage system. One requirement is that an employer must maintain and make available upon request complete descriptions of the electronic generation and storage system and the indexing system that permit the identification and retrieval of documents and records maintained. Employers who are currently using, or contemplating the future use of, an electronic retention system should review the information outlined in the handbook and consult their Alliance of Business Immigration Lawyers (ABIL) attorney for guidance.

E-Verify and Federal Contractors

The previous version of the handbook offered guidance to employers regarding participation in E-Verify and the corresponding I-9 responsibilities, such as maintaining a photograph of a List B document. The new version of the handbook provides additional guidance to federal contractors about their responsibilities under the amended Federal Acquisition Regulation (FAR) related to employment eligibility verification. The handbook explains that the regulation requires contractors with a federal contract that contains a FAR E-Verify clause to use E-Verify for their new hires and all employees (existing and new) assigned to the contract. The handbook also states that where an employee working for a FAR employer undergoes a name change and the employer chooses to verify existing employees by updating existing I-9 forms, a new I-9 must be completed.

Questions and Answers Section

The handbook has expanded its Questions and Answers (Q&A) section to provide clarification to employers in a variety of situations related to the I-9, including the following helpful information:

  • A Native American tribal document is acceptable as both a List B and List C document, and no other documents need be presented. For a current list of tribes recognized by the U.S. federal government, employers may visit the website of the Bureau of Indian Affairs at http://www.bia.gov. A Certificate of Indian Status does not constitute an acceptable Native American tribal document and may not be accepted for I-9 purposes.
  • An employer may accept a Social Security Card that has not been signed as a valid List C document.
  • An employee may present an unexpired I-94 card notated with work-authorized status in two situations: (1) as a List A document along with his or her foreign passport; or (2) as a List C document demonstrating work authorization from USCIS.
  • Employers may accept documents bearing a different name than that which the employee has indicated in Section 1 of the I-9, so long as the documents reasonably relate to the employee. The employer may want to attach a brief memo to the I-9 detailing the employee’s reason for the name discrepancy, including copies of any supporting documentation the employee chooses (but is not required) to provide.

The revised handbook for employers is available at http://www.uscis.gov/files/form/m-274.pdf.

For more information on the updated employer handbook or on potential changes to your I-9 policies and procedures, contact your ABIL attorney.

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2. E-Verify Update: USCIS Updates Web Interface, Launches Newsletter; House Hearings Soon

U.S. Citizenship and Immigration Services (USCIS) has made the following changes to its E-Verify Web interface:

  • added U.S. Passport Photo Matching, a new feature that uses data and photos from the U.S. passport system to assist in the verification process
  • changed the title “Designated Agent” to “E-Verify Employer Agent”
  • updated the following USCIS publications:
  • E-Verify User Manual for Employers
  • E-Verify User Manual for Federal Contractors
  • E-Verify User Manual for E-Verify Employer Agent
  • E-Verify Quick Reference Guide for Employers
  • E-verify Quick Reference Guide for E-Verify Employer Agent

USCIS has also launched E-Verify Connection, a newsletter on E-Verify developments. The first issue is available at http://www.uscis.gov/USCIS/Verification/E-Verify/Publications/E-Verify-Connection.pdf. You may join the newsletter distribution list by e-mailing “subscribe” to E-VerifyOutreach@dhs.gov.

For more information on these developments, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=04db32802cbc8210VgnVCM100000082ca60aRCRD&vgnextchannel=04db32802cbc8210VgnVCM100000082ca60aRCRD.

In related news, Florida recently began requiring certain state agencies and contractors to use E-Verify, while Rhode Island has rescinded its E-Verify requirement for state contractors.

Also, Rep. Elton Gallegly (R-Cal.) will chair the U.S. House of Representatives’ Subcommittee on Immigration Policy and Enforcement. Observers had expected Rep. Steve King (R-Iowa) to be appointed instead, but he is now vice chairman. Rep. Gallegly is considered by many observers to be hawkish on immigration but less controversial than Rep. King. Among other things, Rep. Gallegly was instrumental in creating the pilot program that led to E-Verify. He is expected to hold hearings on E-Verify soon.

The American Immigration Lawyers Association has published a fact sheet on Rep. Gallegly, available at http://www.aila.org/content/default.aspx?docid=34122.

 

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3. Visa Numbers Move Slowly

The Department of State has released the Visa Bulletin for February 2011. Priority dates in several employment-based (EB) categories moved ahead, although not by much overall. For example, the third preference “Other Workers” worldwide category advanced from April 22, 2003, to May 1, 2003. The Mexico third preference category advanced from April 15, 2003, to July 8, 2003. Many categories remain Current.

It had been initially reported that the India EB-2 category was Current, but the Visa Office corrected that erroneous information. The India second preference priority date remains at May 8, 2006.

The February 2011 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5228.html.

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4. USCIS Releases H-1B, H-2B Cap Counts

As of January 7, 2011, U.S. Citizenship and Immigration Services (USCIS) reported that 58,700 cap-subject H-1B petitions were filed, of a maximum of 65,000 available under the fiscal year (FY) 2011 cap. USCIS began accepting H-1B petitions on April 1, 2010, that are subject to the FY 2011 cap.

USCIS noted that it has received over 20,000 petitions filed on behalf of individuals who have earned a master’s degree or higher from a U.S. institution of higher education. USCIS continues to accept these petitions and they will be counted against the regular H-1B cap until the regular cap is reached.

For the H-2B temporary nonagricultural category, the cap is 66,000 per fiscal year, with 33,000 allocated in the first half of the year and 33,000 in the second half. As of January 7, 2011, USCIS had approved 33,243 beneficiaries (with 2,360 pending) for the first half of FY 2011, and had approved 1,452 so far for the second half (with 677 pending). USCIS noted that the estimated number of beneficiaries needed to be included on petitions filed with USCIS to reach the H-2B cap will always be higher than the actual cap, to allow for withdrawals, denials, and revocations.

The Alliance of Business Immigration Lawyers (ABIL) recommends filing H-1B and H-2B petitions now. For advice or help in filing a petition, contact your local ABIL attorney. To locate an ABIL attorney, go to https://www.abil.com/ and click on “ABIL Attorneys” or “Global Attorneys.”

The H-1B cap count and related information is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD. For more on H-1B statistics and filing requirements, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD. The H-2B cap count and related information is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=356b6c521eb97210VgnVCM100000082ca60aRCRD&vgnextchannel=d1d333e559274210VgnVCM100000082ca60aRCRD.

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5. DHS Adds New Countries to H-2A, H-2B Programs; Drops Indonesia

The Department of Homeland Security (DHS), in consultation with the Department of State (DOS), has identified 53 countries whose nationals will be eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) programs for the coming year. Of those countries, 15 were designated for the first time this year.

With limited exceptions, USCIS approves petitions only for nationals of countries designated to participate in the H-2A and H-2B programs. A new list of eligible countries is expected to be published in a Federal Register notice on January 18, 2011; the designations are valid for one year from the date of publication.

Effective January 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.

Of these countries, the following were designated for the first time this year: Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

DHS and DOS have determined that Indonesia does not warrant a renewed designation as a participating country in the H-2A and H-2B programs for 2011.

The new list does not affect the status of individuals who currently hold valid H-2A or H-2B status. A national from a country that is not on the list may be the beneficiary of an approved H-2A and H-2B petition if the Secretary of Homeland Security determines, in her sole and unreviewable discretion, that it is in the U.S. interest.

The USCIS notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=88404e9c7c08d210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. USCIS Releases Pending Employment-Based Adjustment of Status Inventory

U.S. Citizenship and Immigration Services (USCIS) has released a report of the agency’s total pending inventory of applications for employment-based green cards (Form I-485, Application to Register Permanent Residence or Adjust Status). USCIS also has posted five other reports by country of chargeability (China, India, Mexico, Philippines, and All Other Chargeability).

The “Pending Employment-Based Form I-485 Report” shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.

Because of historically higher demand for visas from China, India, Mexico, and the Philippines, each of those countries has its own separate report.

The January 2011 report is available at http://www.uscis.gov/USCIS/statistics/Employment%20Based%20I-485%20Pending%20Inventory%20as%20of%20January%2005,%202011.pdf. For more information, see the USCIS Q&A at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextchannel=ae853ad15c673210VgnVCM100000082ca60aRCRD&vgnextoid=5e170e6bcb7e3210VgnVCM100000082ca60aRCRD.

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7. USCIS Issues Policy Memo Disallowing Concurrent Filings for Special Immigrant Religious Workers

In January 2011, U.S. Citizenship and Immigration Services released a policy memorandum dated November 9, 2010, which states that any Form I-485 (Application to Register Permanent Residence or Adjust Status) where the underlying basis for adjustment is an I-360 petition for a special immigrant religious worker must be filed based on an approved I-360 petition. USCIS service centers and offices (including the lockboxes) must reject any Forms I-485, I-765 (Application for Employment Authorization), or I-131 (Application for Travel Document) filed concurrently with or based on a pending I-360 petition seeking the special immigrant religious worker classification.

The new guidance was issued pursuant to a decision by the U.S. Court of Appeals for the Ninth Circuit (Ruiz-Diaz v. United States, No. 09-35734 (9th Cir. Aug. 20, 2010)). The memo notes that any I-485 based on an I-360 religious worker petition filed before November 9, 2010, will be accepted and adjudicated pursuant to the guidelines established in an earlier memorandum issued on August 5, 2009 (Memorandum HQDOMO AD09-45, “Clarifying Guidance on the Implementation of the District Court’s Order in Ruiz-Diaz v. United States, No C07-1881RSL (W.D. Wash. June 11, 2009)”).

The new memo is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2011/January/Ruiz-Diaz_Policy_Memo.pdf.

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8. New Publications and Items of Interest

GAO report on H-1B program. The U.S. Government Accountability Office (GAO) has published “H-1B Visa Program: Reforms Are Needed To Minimize the Risks and Costs of Current Program.” The GAO found that demand for new H-1B workers is largely driven by a small number of employers. From 2000 to 2009, over 14 percent of all initial petitions were submitted by cap-exempt employers, the GAO said, and only a few employers (fewer than 1 percent) garnered over one-quarter of all H-1B approvals.

Most interviewed companies said the H-1B cap and program created costs but were not factors in their decisions to move research and development overseas. The 34 H-1B employers GAO interviewed reported that the cap created some additional costs, although its impact depended on the size and maturity of the company. For example, in years when visas were denied by the cap, most large firms reported finding other (sometimes more costly) ways to hire their preferred job candidates. On the other hand, small firms were more likely to fill their positions with different candidates, which they said resulted in delays and occasional economic losses, particularly for firms in rapidly changing technology fields.

Limitations in agency data and systems hinder tracking the cap and H-1B workers over time. The total number of H-1B workers in the U.S. at any one time, and information about the length of their stay, is unknown, the GAO said. The agency concluded that the H-1B program, as currently structured, may not be used to its full potential and may be detrimental in some cases. The report offers several matters for congressional consideration, including that Congress re-examine key H-1B program provisions and make appropriate changes as needed. The GAO also recommends that the Departments of Homeland Security and Labor take steps to improve efficiency, flexibility, and monitoring of the H-1B program.

The full report is available at http://www.gao.gov/products/GAO-11-26. Highlights are available at http://www.gao.gov/highlights/d1126high.pdf.

National Agricultural Workers Survey data. The Department of Labor’s Employment and Training Administration has released National Agricultural Workers Survey data for fiscal years 1989-2009. The survey contains information from 52,479 in-person interviews with hired crop farm workers. The interviews were conducted in 467 counties and 40 states between October 1, 1988, and September 30, 2009. The document describes the data and provides analysis tips.

The notice is available at http://wdr.doleta.gov/directives/corr_doc.cfm?docn=2974. The document is available at http://wdr.doleta.gov/directives/attach/TEN/ten2010/TEN_21-10.pdf, and additional information and the data are available for downloading at http://www.doleta.gov/agworker/naws.cfm.

SEVIS/SEVP schools and statistics. U.S. Immigration and Customs Enforcement (ICE) has updated the list of approved schools under the Student and Exchange Visitor (SEVP) program. The list is available at http://www.ice.gov/doclib/sevis/pdf/ApprovedSchools.pdf. A clickable map is available at http://www.ice.gov/sevis/map/approvedschoolsmap.htm. The latest quarterly review, “SEVIS By The Numbers,” a statistical breakdown of the Student and Exchange Visitor Information System’s performance and trends in foreign student representation in U.S. academic and exchange programs, is available at http://www.ice.gov/doclib/sevis/pdf/quarterly_report_ending_sept2010.pdf.

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9. Member News

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was named by Georgia Trend magazine as one of the 100 most influential Georgians in 2011. People who made the list were those who “affect the course of events in Georgia” and “influence what you think and how you live.” Mr. Kuck’s profile notes that Mr. Kuck “has spent his professional life in the pursuit of justice.” See http://www.georgiatrend.com/cover-story/01_11_mig.shtml.

Mr. Kuck also has had a new blog entry published, “Why a Company Should Not Audit Its Own Forms I-9,” which discusses and provides a link to the ICE I-9 field manual and argues that I-9 self-audits typically result in more difficult situations for the employer than if an audit is done by a qualified, experienced, independent auditor, such as an attorney. The blog is available at http://www.electronici9.com/?p=940.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) has published several new blog entries. “The Absurdity of the Birthright Citizenship Act of 2011,” which discusses the granting of citizenship to those born in the U.S., is available at http://cyrusmehta.blogspot.com/2011/01/absurdity-of-birthright-citizenship-act.html. “One Year After the Neufeld Memo: Can the Beast Ever Be Tamed?,” which discusses questioning of H-1B employers and workers, is available at http://cyrusmehta.blogspot.com/2011/01/one-year-after-neufeld-memo-can-beast.html.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) has published a new blog entry, “Rethinking Employment-Based Immigration: Stop the GOP’s Slide Toward Socialism,” which takes a look at Republican efforts to increase enforcement and expand E-Verify participation. He argues that a truly Republican approach would lift the “red tape” burden of these programs from the shoulders of employers, and recommends 13 actions the GOP should take. The blog is available at http://www.nationofimmigrators.com/?p=377.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) has co-authored a new law review article in the Fordham Urban Law Journal (38 Fordham Urb. L.J. 183 (2010)). The article, “Attracting the Best and the Brightest: A Critique of the Current U.S. Immigration System,” focuses on problems in the EB-1-1, EB-1-2, and NIW areas. The article first examines how other national immigration systems entice the best and brightest immigrants. It then examines the current U.S. immigration system and its evolution since the Immigration Act of 1990. Finally, the article suggests how the United States can improve its immigration system to continue to attract talented immigrants.

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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

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EB-5 & Other Investor News from the Alliance of Business Immigration Lawyers Vol. 1, No. 1 • January 01, 2011

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Headlines:

1. USCIS Holds Quarterly Stakeholders Meeting – As part of a quarterly EB-5 stakeholders call, USCIS released statistics on usage of the EB-5 program for FY 2010 and other information.

2. USCIS Confirms Indirect Job Creation Can Occur Outside Regional Center Boundaries – USCIS recently agreed to count jobs indirectly created outside the geographical boundaries of an EB-5 Regional Center (RC) in determining whether the RC’s business plan complies with EB-5 regulations.3. USCIS Seeks Comment on EB-5 Policy Memo – Even though the USCIS issued an EB-5 memo over a year ago, USCIS is seeking comments now.4. USCIS Acknowledges Problems with Online Case Tracking – USCIS’s Customer Service Directorate acknowledged the problems and promised to update CRIS to correct them.5. AILA EB-5 Conference – An EB-5 conference sponsored by the American Immigration Lawyers Association is scheduled for March 14, 2011, at The Cosmopolitan of Las Vegas.6. New Publications and Items of Interest – New Publications and Items of Interest7. Member News – Member News8. EB-5 Government Agency Links – EB-5 Government Agency Links

Details:

1. USCIS Holds Quarterly Stakeholders Meeting

On December 16, 2010, the U.S. Citizenship and Immigration Services (USCIS) Service Center Operations (SCOPS) Directorate and the Office of Public Engagement (OPE) hosted the EB-5 Investor Quarterly Engagement. The agenda and relevant information are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=858206489ec6a210VgnVCM100000082ca60aRCRD&vgnextchannel=e0b081c52aa38210VgnVCM100000082ca60aRCRD.

EB-5 statistics for FY 2010. As part of the Quarterly Engagement, USCIS released statistics on usage of the EB-5 program for fiscal year (FY) 2010. Among the highlights:

  • The number of approved Regional Centers has reached 120 spread across 35 states, the District of Columbia, and Guam. A complete list is posted at http://www.uscis.gov/eb-5centers.
  • Approximately 90 percent of all EB-5 investors have invested in a Regional Center (RC).
  • USCIS received 110 initial RC proposal filings in FY 2010. Of that total, 36 were approved and 30 were denied. USCIS also received 42 amended RC proposal filings, of which 27 were approved and 11 were denied.
  • The number of Form I-526s (Immigrant Petition by Alien Entrepreneur) and Form I-829s (Petition by Entrepreneur to Remove Conditions) filed with USCIS increased significantly from the previous fiscal year. The number of I-526 petitions increased roughly 90 percent to 1,955 in the 2010 fiscal year, compared to 1,028 in FY 2009. Likewise, the number of I-829 petitions was up roughly 75 percent, from 437 in FY 2009 to 768 in FY 2010.
  • The approval rate for initial I-526 petitions continued to increase. Of the I-526 petitions that received final action in FY 2010, USCIS approved 1,369 (89 percent) and denied 165. By contrast, in FY 2009 USCIS approved 86 percent of the I-526 petitions that received final action (1,262) and denied 207. In the prior four fiscal years, both the total rate and number of approvals gradually increased from 53 percent in FY 2005 (179 approvals and 156 denials), to 73 percent in FY 2006 (336 approvals and 124 denials), to 76 percent in FY 2007 (473 approvals and 148 denials), to 84 percent in FY 2008 (640 approvals and 120 denials).
  • The approval rate for I-829s, however, declined to 83 percent of petitions that received final action in FY 2010, with 274 approved and 56 denied. By comparison, 86 percent of I-829 petitions were approved in FY 2009 (347 approvals and 56 denials). Until FY 2010 the approval rate for I-829s had steadily risen from 62 percent in FY 2005 (184 approvals and 112 denials) to 64 percent in FY 2006 (106 approvals and 59 denials) to 69 percent in FY 2007 (111 approvals and 49 denials) to 70 percent in FY 2008 (159 approvals and 68 denials).
  • The number of EB-5 visas issued in FY 2010 declined roughly 55 percent from the previous fiscal year, going from 4,218 visas issued in FY 2009 to 1,885 visas issued in FY 2010. Of those EB-5 visas issued in FY 2010, a total of 772 (41 percent) were issued to nationals from the People’s Republic of China. Other countries accounting for the most EB-5 visas issued in FY 2010 were South Korea with 16 percent (295), the U.K. with 7 percent (135), Taiwan with 5 percent (94), and India with 3 percent (62). The remaining 527 EB-5 visas (a total of 527) were issued to nationals of all other countries.

Processing times. USCIS also released its current EB-5 processing times. Currently, the processing time for a typical I-526 petition is five months, matching USCIS’s target. Form I-829 processing time is currently six months, compared to the target of five months. The processing time for an RC initial designation proposal also exceeds the target, with a current processing time of five months, compared to the target of four months. On the other hand, RC amended designation proposals are currently being processed in one month, while the target processing time is four months. For EB-5 cases in which USCIS issued a request for evidence (RFE), the agency said its goal is to decide the case within 30 days of receipt of a response to the RFE.

Statistics for individual RCs. In response to inquiries from members of Congress, investors, and the press, in FY 2011 USCIS plans to begin publishing quarterly and annual reports on filing volumes and final case actions on I-526 and I-829 petitions affiliated with specific RCs. However, USCIS does not have a system in place to quickly and accurately gather that information. Currently, RC affiliations are not noted until the petitions are assigned to an Immigration Service Officer (ISO) and some time passes before cases are assigned, so there is a lag of several months before that information is compiled. USCIS plans to start gathering RC affiliations shortly after petitions are filed and expects to publish its first quarterly report by June 2011.

I-526 and I-829 revisions. USCIS plans to revise forms I-526 and I-829 in 2011. Revisions will include information collection on RC affiliations. Drafts of the revised forms will be posted at http://www.regulations.gov for review and comment.

Additional EB-5 staff at California Service Center. USCIS has added staff to process EB-5 cases at the California Service Center (CSC). The CSC is training additional ISOs in processing forms I-526, I-829, I-924 and I-924A, and has also added another EB-5 supervisor. The new EB-5 Immigration Service Officers (ISOs) are being trained by current EB-5 ISOs, which USCIS said has temporarily slowed adjudication of EB-5 cases. Once the new ISOs are trained, USCIS expects to adjudicate EB-5 cases faster. USCIS plans to post its EB-5 training materials on the USCIS website by the end of February 2011.

Form I-924 (Application to Establish Regional Center) and I-924A (Supplemental Form). As of November 23, 2010, applications for RC designation must use Forms I-924 and the I-924A Supplement. In the week before these forms became mandatory, USCIS received approximately 100 initial and amended RC proposals, roughly 65 percent of all RC proposals filed during FY 2010. USCIS expects the surge in filings to delay processing of RC applications. Form I-924A must be filed by all approved RCs for the first time no later than December 29, 2011.

EB-5 FAQs. USCIS is preparing EB-5 Frequently Asked Questions (FAQs), which it plans to post on its website shortly. USCIS plans to update the FAQs regularly.

Information on the latest stakeholder meeting, and a summary of the most recent previous meeting, are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=858206489ec6a210VgnVCM100000082ca60aRCRD&vgnextchannel=e0b081c52aa38210VgnVCM100000082ca60aRCRD.

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2. USCIS Confirms Indirect Job Creation Can Occur Outside Regional Center Boundaries

U.S. Citizenship and Immigration Services (USCIS) recently agreed to count jobs indirectly created outside the geographical boundaries of an EB-5 Regional Center (RC) in determining whether the RC’s business plan complies with EB-5 regulations. The policy change was expressed in a December 3, 2010, letter from USCIS Director Alejandro Mayorkas in response to a letter from Senator Patrick Leahy, Chairman of the Senate Judiciary Committee.

Mayorkas wrote: “USCIS interprets the law to require that a regional center focus its EB-5 capital investment activities on a single, contiguous area within the defined geographic jurisdiction requested by the regional center. Nevertheless, we agree that the law does not further mandate that all indirect job creation attributable to a regional center take place within that jurisdiction. I will, therefore, ensure that USCIS policy reflects this understanding of the law.”

The USCIS letter is at http://www.ilw.com/immigrationdaily/news/2010,1222-eb5.pdf.

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3. USCIS Seeks Comment on EB-5 Policy Memo

USCIS is accepting comments until January 21, 2011, on a December 2009 EB-5 policy memorandum. The memo, dated December 11, 2009, from Donald Neufeld, Acting Associate Director, Domestic Operations, is posted on the USCIS website at http://www.uscis.gov/USCIS/Outreach/Adjudicatingof0EB-5_121109_commentdates.pdf. Even though the USCIS issued the Neufeld EB-5 memo over a year ago, USCIS is seeking comments now.

Key aspects of the Neufeld memo include:

  • Material Changes: The memo states that USCIS plans to require a new I-526 petition to be filed when there is a material change to the business plan after the initial approval. This can have significant consequences for an EB-5 investor, including the need to begin a new two-year conditional residence period and the possibility that a child who has turned 21 since the original I-526 filing would be excluded from the new filing. The memo would also allow the agency to deny an I-829 petition if there are material changes in the business plan.
  • Streamlining Case Processing: The memo revised the Adjudicator’s Field Manual (AFM) by including guidance on adjudicating “exemplar” filings. The AFM would require ISOs to give deference to prior exemplar approvals during the processing of individual EB-5 petitions as long as the underlying facts remain unchanged. ISOs are instructed to revisit the RC approval if there is a material change, if there is fraud or misrepresentation, or if the RC approval was legally deficient.
  • Meaning of Full-Time Position: The revised AFM will include guidelines on determining whether the job creation requirement has been met. Intermittent, temporary, seasonal and transient jobs will not be counted toward job creation goals. However, USCIS will allow construction and tourism jobs to be considered permanent if they are created by the EB-5 investment and are expected to last at least two years. ISOs will also be instructed that the full-time jobs cannot be an aggregate of several part-time jobs and cannot be filled by independent contractors.
  • Determining Targeted Employment Area (TEA): The revised AFM will include guidance in determining whether the investment is in a TEA, allowing the EB-5 investor to invest $500,000 rather than $1,000,000. If the RC project is located in a TEA at the time of the investment, it qualifies as being in a TEA even if the unemployment rate goes down after the investment, because job creation is the goal of the EB-5 program. A claim that only a portion of a geographic area has high unemployment is seen as an attempt to “gerrymander” a finding of high unemployment and is not accepted without a state government designation.

Instructions for commenting on the Neufeld EB-5 memo are at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f19102992a2ac210VgnVCM100000082ca60aRCRD&vgnextchannel=f19102992a2ac210VgnVCM100000082ca60aRCRD.

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4. USCIS Acknowledges Problems with Online Case Tracking

At a recent meeting with USCIS, the American Immigration Lawyers Association (AILA) expressed its concern that case status updates are not being posted on USCIS’s online tracking system, Customer Relationship Interface System (CRIS). In particular, AILA said that when a petition is transferred to another service center, CRIS does not show to which center the filing was transferred and no additional updates are made. So, for example, if a request for evidence (RFE) is sent but not received, and there is no indication of an RFE in CRIS, the case may be denied due to abandonment, particularly if USCIS records indicate that the notice was mailed to a correct address. USCIS’s Customer Service Directorate acknowledged the problems and promised to update CRIS to correct them.

In addition, USCIS recently said it is taking longer than usual to issue receipts for all filings due to the high volume of petitions filed before the USCIS fee increases took effect on November 23, 2010. In response to an inquiry, USCIS said it will take up to a month from the issuance of a receipt before the information is available to be tracked on CRIS.

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5. AILA EB-5 Conference

An EB-5 conference sponsored by the American Immigration Lawyers Association is scheduled for March 14, 2011, at The Cosmopolitan of Las Vegas. Three ABIL members are scheduled to speak at the conference: Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm), Bernard Wolfsdorf (bio: https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm), and Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm). For more information, see http://www.aila.org/content/default.aspx?docid=33810.
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6. New Publications and Items of Interest

USCIS blog entry on the EB-5 program. USCIS published a blog entry on November 30, 2010, “What is the EB-5 program?” The blog includes many comments from the public. The blog entry, on “Beacon: The Official Blog of USCIS,” is available at http://blog.uscis.gov/2010/11/what-is-eb-5-program_30.html.
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7. Member News

Stephen Yale-Loehr was quoted in a December 22, 2010, Reuters article about the EB-5 immigrant investor program. Mr. Yale-Loehr noted that properly administered, the EB-5 program benefits the U.S. and investors in four ways. “No. 1, it’s a win for the U.S. businesses that might not be able to finish a project but for foreign financing…. No. 2, it’s a win for the foreign investor, obviously, because they get a green card out of it. No. 3, it’s a win for the U.S. taxpayer because they are seeing the benefits of an increase in economic activity at no expense … and No. 4, it’s a win for U.S. workers because jobs are being created.” The article is available at http://ca.reuters.com/article/topNews/idCATRE6BL2KJ20101222.
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8. EB-5 Government Agency Links

USCIS Web Page on EB-5 Immigrant Investors: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=facb83453d4a3210VgnVCM100000b92ca60aRCRD&vgnextoid=facb83453d4a3210VgnVCM100000b92ca60aRCRD

USCIS Policy and Procedural Memoranda on EB-5 Investors: http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextchannel=f1f051b4b1af3110VgnVCM1000004718190aRCRD&vgnextoid=f1f051b4b1af3110VgnVCM1000004718190aRCRD

Immigrant Investor Regional Centers List: http://www.uscis.gov/eb-5centers

Form I-526, Immigrant Petition by Alien Entrepreneur: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=79a7105b5904d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=7d316c0b4c3bf110VgnVCM1000004718190aRCRD

Form I-829, Petition by Entrepreneur to Remove Conditions: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d4f63591ec04d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=7d316c0b4c3bf110VgnVCM1000004718190aRCRD

Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7387e6b2fc57c210VgnVCM100000082ca60aRCRD&vgnextchannel=7d316c0b4c3bf110VgnVCM1000004718190aRCRD

Form I-924A, Supplement to Form I-924: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=256866fcd667c210VgnVCM100000082ca60aRCRD&vgnextchannel=7d316c0b4c3bf110VgnVCM1000004718190aRCRD

News from the Alliance of Business Immigration Lawyers Vol. 7, No. 1A • January 01, 2011

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Headlines:

1. DREAM Act Fails in Senate – Prospects are dim for further developments in the near future, although Democrats vowed to push for the legislation and to include it in any comprehensive immigration reform bill.

2. USCIS Delays Deemed Export Attestation on New I-129 – The new edition of Form I-129, Petition for a Nonimmigrant Worker, went into effect on December 23, 2010, but petitioners may leave Part 6 blank until February 20, 2011.

3. File H-1B Petitions Now, ABIL Advises; USCIS Plans Proposed Rule to Establish Electronic H-1B Pre-Registration – 53,900 cap-eligible petitions have been approved or are pending.

4. USCIS Issues Final Rule for CNMI-Only Investor Program – The “E-2 CNMI Investor Visa” allows foreign long-term investors to reside in the CNMI through December 2014; petitions will be accepted beginning January 18, 2011.

5. CBP Expands Global Entry ‘Trusted Traveler’ Program to Mexicans, SENTRI, NEXUS Members – CBP reports that the program “reduces average wait times by 70 percent while maintaining and enhancing security.”

6. USCIS Seeks OMB Approval for New E-Verify Employer Survey – The University of Arizona will conduct the survey of 900 employers, and final summary results will be publicly released.

7. ABIL Global: Turkey Implements Significant Changes in Work Permit Criteria – It is unprecedented for the Ministry to publicly announce concrete details of adjudication factors.

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links

Details:

1. DREAM Act Fails in Senate

The House of Representatives passed the DREAM (Development, Relief and Education for Alien Minors) Act on December 8, 2010, but the Senate failed to pass the bill on December 18. The outcome was 55-41, which was five votes short of the 60 needed to bypass a filibuster by Republicans and move the bill forward.

Prospects are dim for enactment in the near future, although Democrats vowed to push for the legislation and to include it in any comprehensive immigration reform bill. President Barack Obama said he found the results “incredibly disappointing” but that his administration “will not give up on the DREAM Act, or on the important business of fixing our broken immigration system.” House Speaker Nancy Pelosi said, “Though disappointed by the result of today’s DREAM Act vote in the Senate, we are not deterred in our determination to continue advocating for this critical legislation.” Sen. Lindsey Graham (R-S.C.) countered, “We’re not going to pass the DREAM Act or any other legalization until we secure our borders. It will never be done stand-alone. It has to be part of comprehensive immigration reform.” (The Senate passed a $600 million border security bill in August.)

The DREAM Act, which has a long history, would allow qualified undocumented children to apply for conditional legal immigration status and eventually to obtain permanent residence if they meet certain requirements.

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2. USCIS Delays Deemed Export Attestation on New I-129

The new edition of Form I-129, Petition for a Nonimmigrant Worker, took effect on December 23, 2010, as previously announced by U.S. Citizenship and Immigration Services. The form is used to file nonimmigrant petitions for employees in categories such as H-1B, L-1 and O-1. The new edition has a revision date of November 23, 2010.

Part 6 of the new I-129 contains a new “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” The employer must certify, with respect to any technology to which the employee will have access on the job, that a license from the Departments of Commerce or State is not required to release the technology to the foreign national (or, in the rare case that a license is required, the employer will restrict the beneficiary’s access to the technology until a license is obtained). Until February 20, 2011, petitioners may leave Part 6 blank.

As background, U.S. law prohibits the export of controlled technology and technical data to certain foreign nationals located within the United States without a license to do so. U.S. law treats as an export the release of controlled technology or technical data to a foreign national working in the United States, even if the company does not export anything overseas. Technology or source code is considered released for export when it is made available to foreign nationals for visual inspection (such as reading technical specifications, plans, or blueprints), when technology is exchanged orally, or when technology is made available by practice or application under the guidance of persons with knowledge of the technology. Such exports of controlled technology or technical data must be authorized through an export license issued by the Commerce or State Department before release to the nonimmigrant foreign national. To properly complete the new I-129 form, an employer must first classify the technology or technical data that will be released to or be accessed by a prospective foreign national employee to determine whether an export license may be required.

The Commerce Department lists items subject to export licenses at http://www.access.gpo.gov/bis/ear/ear_data.html#ccl. The State Department’s export regulations are at http://www.pmddtc.state.gov/regulations_laws/itar.html. The Commerce Department has a series of six training modules, “Essentials of Export Controls,” at http://www.bis.doc.gov/seminarsandtraining/essentials_of_export_ctrls.htm. The training modules can also be downloaded in PDF format at http://www.bis.doc.gov/seminarsandtraining/training-modules/essentials_of_export_controls_modules_1_6.pdf.

A two-page fact sheet focusing on universities, which includes suggested questionnaire content for the new export controls certification, is available at http://xa.yimg.com/kq/groups/15854395/2106905181/name/I-129%20AUECO%20Practice%20Tips.pdf.

A related USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ef1ee46afc5fc210VgnVCM100000082ca60aRCRD&vgnextchannel=e7801c2c9be44210VgnVCM100000082ca60aRCRD.

For additional advice on the new I-129 and deemed export attestations, contact your local Alliance of Business Immigration Lawyers (ABIL) attorney. To locate an ABIL attorney, go to https://www.abil.com/ and click on “ABIL Attorneys” or “Global Attorneys.”

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3. File H-1B Petitions Now, ABIL Advises; USCIS Plans Proposed Rule to Establish Electronic H-1B Pre-Registration

H-1B filings may increase as the 65,000 numerical limit (cap) approaches. The Alliance of Business Immigration Lawyers (ABIL) recommends filing petitions now. U.S. Citizenship and Immigration Services (USCIS) reports that as of December 17, 2010, 53,900 cap-eligible petitions have been approved or were pending. USCIS has also receipted 19,700 H-1B petitions for individuals with advanced degrees, near that separate cap of 20,000. Once the caps are reached, no new H-1B cap-subject petitions will be accepted until April 1, 2011.

In related news, USCIS plans to propose a rule to establish electronic pre-registration for H-1B petitions. Reportedly, this would mean that an employer would first register online and wait for an H-1B number before filing the full petition with documentation. The idea is to reduce the burden on both employers and the agency in preparing and submitting petitions, entering data, and returning non-selected petitions. Details of the proposed rule and a date of publication have not yet been released.

For advice or help in filing an H-1B petition, contact your local ABIL attorney. To locate an ABIL attorney, go to https://www.abil.com/ and click on “ABIL Attorneys” or “Global Attorneys.” For more on H-1B statistics and filing requirements, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD.

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4. USCIS Issues Final Rule for CNMI-Only Investor Program

U.S. Citizenship and Immigration Services (USCIS) issued a final rule on December 20, 2010, that creates a nonimmigrant investor visa classification in the Commonwealth of the Northern Mariana Islands (CNMI). The “E-2 CNMI Investor Visa” allows foreign long-term investors to reside in the CNMI through December 2014. Petitions for the E-2 CNMI Investor classification will be accepted beginning January 18, 2011. Petitions received before that date will be rejected.

Authorized by the Consolidated Natural Resources Act (CNRA) of 2008, the E-2 CNMI Investor Visa will be issued for two years, is renewable, and is valid only in the CNMI. The investor’s spouse and children may also apply for status as dependents of the investor.

Long-term investors are individuals with certain CNMI-issued investor permits that required a fixed minimum investment amount and whose permits can be renewed over a period of multiple years.

Those eligible for E-2 CNMI Investor status include long-term business, foreign, and retiree foreign investors. To qualify, the investor must:

  • have been admitted to the CNMI with a long-term investor visa under CNMI immigration law before November 28, 2009;
  • have continuously maintained residence in the CNMI with long-term investor status;
  • currently maintain the investment(s) that formed the basis for the CNMI long-term investor status; and
  • otherwise be admissible to the U.S. under the Immigration and Nationality Act.

Investors must file an initial petition before January 18, 2013, and must use the existing Petitioner for a Nonimmigrant Worker, Form I-129, with Supplement E. After the initial petition is granted, extensions are available until December 31, 2014. The processing fee is $325, plus an $85 biometrics fee for certain beneficiaries who require an initial grant of status in the CNMI. Fee waivers for inability to pay are available.

The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-31652.pdf. The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5fb279cebb4fc210VgnVCM100000082ca60aRCRD&vgnextchannel=a2dd6d26d17df110VgnVCM1000004718190aRCRD. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ab3379cebb4fc210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD. For more information, see the CNMI Web page at http://www.uscis.gov/cnmi.

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5. CBP Expands Global Entry ‘Trusted Traveler’ Program to Mexicans, SENTRI, NEXUS Members

U.S. Customs and Border Protection (CBP) published two Federal Register notices on December 29, 2010, announcing the expansion of Global Entry benefits. One notice extends Global Entry enrollment to eligible Mexican nationals; the other notice extends Global Entry benefits to SENTRI and NEXUS members.

Global Entry is a CBP trusted traveler program that allows pre-approved members an alternative to regular passport processing lines. CBP reports that the program “reduces average wait times by 70 percent while maintaining and enhancing security.”

To become a member of Global Entry, eligible Mexican nationals must complete an online application available at the Global Online Enrollment System (GOES, available at https://goes-app.cbp.dhs.gov/), pay a non-refundable $100 application fee, pass a background investigation conducted by both CBP and the Mexican government, and undergo an in-person interview with a CBP officer at an enrollment center. Mexican nationals must satisfy all requirements of the Global Entry pilot program to become members. CBP began accepting applications from eligible Mexican nationals on December 29.

Also as of that date, SENTRI members may now apply for Global Entry benefits for no additional fee. CBP advises SENTRI members to check their status on the GOES Web site and indicate their wish to use Global Entry. SENTRI members who are Mexican nationals must pass a risk assessment conducted by the Mexican government before receiving full Global Entry benefits.

All NEXUS members will also be able to receive the benefits of Global Entry at no additional cost via automated kiosks at participating airports. CBP advises NEXUS members to check their status in their GOES accounts to confirm whether they need to submit 10 fingerprints or any other necessary documentation to receive Global Entry benefits.

The Global Entry pilot program was launched in 2008 and is available at 20 major airports in the U.S for approved U.S. citizens, lawful permanent residents, and citizens of the Netherlands over 14 years of age who have a valid machine-readable passport and who consent to background screening. To date, Global Entry members have used the kiosks more than 600,000 times, and there are more than 100,000 members in the program.

Global Entry applicants may complete their interview and biometric data collection at enrollment centers at any of the 20 sites. Approved members may use kiosks at any of the sites to complete their CBP processing upon arrival from international travel. At the kiosk, Global Entry members insert their passport or lawful permanent resident card into a document reader, provide digital fingerprints for comparison with fingerprints on file, answer customs declaration questions on the kiosk’s touch screen, and then present a transaction receipt to CBP officers before leaving the inspection area.

CBP has signed arrangements with the governments of the United Kingdom and Germany to reciprocate Global Entry benefits with citizens from their countries.

CBP’s announcement is available at http://www.cbp.gov/xp/cgov/travel/travel_news/global_published.xml. The Federal Register notices are available at http://edocket.access.gpo.gov/2010/pdf/2010-32832.pdf (Mexicans) and http://edocket.access.gpo.gov/2010/pdf/2010-32829.pdf (NEXUS and SENTRI participants).

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6. USCIS Seeks OMB Approval for New E-Verify Employer Survey

U.S. Citizenship and Immigration Services is seeking Office of Management and Budget (OMB) approval for a new information collection to survey 900 employers about the E-Verify program. The University of Arizona will conduct the survey, and final summary results will be publicly released.

According to a USCIS letter to be sent to potential participating employers, “[t]he goals of the evaluation are to understand the knowledge and perception of the E-Verify program and its utility and barriers to utilization of E-Verify. Congress is interested in this information to help it determine whether E-Verify should be made mandatory for a larger group of employers and, if so, what modifications to the current Program need to be made.”

USCIS’ OMB notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-32546.pdf. The employer letter is available at http://www.regulations.gov/#!documentDetail;D=USCIS-2010-0018-0004. The proposed survey is available at http://www.regulations.gov/#!documentDetail;D=USCIS-2010-0018-0007.

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7. ABIL Global: Turkey Implements Significant Changes in Work Permit Criteria

Turkey’s Ministry of Labor and Social Security released a communiqué on July 28, 2010, regarding criteria to be considered in adjudicating work permits. The communiqué is pursuant to Article 13 of the Implementation Regulation on the Foreigner’s Work Permit Code (#4817). It is unprecedented for the Ministry to publicly announce concrete details of adjudication factors.

The Ministry indicates in the communiqué that in adjudicating work permits, the following criteria must be met:

  1. New 5:1 Ratio: There must be at least five Turkish citizen employees per foreign national applicant, as evidenced on payroll records. (Exception: Newly established legal entities can be founded by a foreign individual. If such an investor owns at least 20 percent (but amounting to no less than Turkish Lira/TRY 40,000 – the current exchange rate is 1.5 TRY to 1 USD) worth of shares of the entity and, within 6 months, the five-employee criterion can be met, a work permit may be approved for the foreign partner/investor.)
  2. Capital requirements: The employer’s paid in capital must be at least TRY 100,000. In the alternative, the employer may show gross (assumedly annual) sales amounting to TRY 800,000, or exports with a gross annual value of US $250,000. (Exception: In the case of a nonprofit or private employer, criterion #2 will not apply.)
  3. Salary: The foreign employee’s salary must be commensurate with the position offered. More specifically, certain managers, pilots, and engineers/architects and teachers cannot be paid less than a specified amount times the minimum wage. (Gross minimum wage is TRY 760.50 for the period of July 1, 2010, through December 31, 2010.) All others must be paid at least 1.5 times the minimum wage.

The communiqué offers guidance on other professions and workplaces as well.

Additionally, issued in the Official Gazette on July 31, 2010, were changes to the “Application Regulation of Law No. 4817 Related to Work Permits for Foreigners.”

The two most significant amendments specify:

  1. Online filing: Work Permit applications must be filed online. The signed application form and supporting documents must be sent to the Ministry within 6 business days from the online application date.
  2. Employer’s finances: The Ministry now again requires the prior year’s profit-and-loss statement and balance sheet approved by the certified financial advisor or Tax Office. (This reverses a decision in February 2010 to no longer require them in most cases.)

2010 has seen an unprecedented level of change in Turkish immigration law, both in procedures and details of adjudication criteria. Late in the year, the implementation of the online filing system caused a tremendous increase in adjudication time and formal “requests for further documentation.” It is hoped that in 2011, many of the above changes will be integrated fully so that adjudication will return to a smoother process.

The communiqué is available at http://www.yabancicalismaizni.gov.tr/tr/index.html.

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8. New Publications and Items of Interest

New E-Verify newsletter. U.S. Citizenship and Immigration Services has published the first issue of E-Verify Connection, available at http://www.uscis.gov/USCIS/Verification/E-Verify/Publications/E-Verify-Connection.pdf.

ICE seeks to remove the wrong people. TRACImmigration reports that immigration courts are rejecting a significant and increasing number of cases in which Immigration and Customs Enforcement (ICE) has sought to remove individuals from the U.S., according to an analysis of recent case-by-case government data. Key findings include:

  • During the last three months of fiscal year (FY) 2010, the rejection rate of ICE requests for removal was nearly one out of three, or 31 percent. This turndown rate is up from one out of every four 12 months earlier.
  • For all of FY 2010, some courts turned down ICE removal requests more than half of the time. Among them were the immigration courts in New York City (70% turned down), Oregon (63% turned down), Los Angeles (63% turned down), Miami (59% turned down) and Philadelphia (55% turned down).
  • Considering the records for the last five years, immigration courts determined that more than a quarter of a million individuals for whom ICE sought removal were entitled to remain in the U.S.

The report is available at http://trac.syr.edu/immigration/reports/243/.

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9. Member News

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) has published a new blog entry, “Obama Is To Blame for the Failure of Immigration Reform,” which argues that the Obama administration and Democrats failed to advocate sufficiently for the DREAM Act. The blog is available at http://musingsonimmigration.blogspot.com/2010/12/obama-is-to-blame-for-failure-of.html.

Mr. Kuck was reported on or quoted recently in the Wall Street Journal (http://online.wsj.com/article/SB10001424052748704098304576021860881102514.html), the Atlanta Journal-Constitution (http://www.ajc.com/news/georgia-politics-elections/georgia-takes-action-on-774349.html), and the PoliJAM Times (http://www.polijam.com/index.php?option=com_content&view=article&id=44338:immigration-crackdown-creates-backlog&catid=53:us&Itemid=29). In the AJC article on proposed Georgia immigration enforcement legislation patterned after the new Arizona law, Mr. Kuck said, “Let’s not get carried away with some plan that doesn’t solve any problems, creates more chaos than it solves, doesn’t have any long-term solution, and they don’t have the money to enforce.”

Ron Klasko’s (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm) firm, Klasko, Rulon, Stock & Seltzer, LLP, has launched a new micro-website with information on non-PERM immigration options and self-petition green cards for scientists, researchers and clinicians. It provides extensive information on Extraordinary Ability (EA), National Interest Waiver (NIW) and Outstanding Researcher/Professor (OR/P) petitions. It also includes information on nonimmigrant visa issues, such as understanding the J-1 home residency requirement and obtaining a waiver, as well as using the O-1 as a bridge to a waiver. The site also provides important information relating to maintaining valid nonimmigrant status while the permanent residence application is pending. See http://www.eb1immigration.com/.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) has published a new blog entry, “Consequences of Visa Bulletin Cutoff Date Retrogression Under the Child Status Protection Act,” which discusses the impact of the retrogression of visa priority dates on those who are near 21 years old. The blog is available at http://cyrusmehta.blogspot.com/2010/12/consequences-of-visa-bulletin-cutoff.html. He also recently co-authored the blog entry, “Keeping Hope Alive: President Obama Can Use His Executive Power Until Congress Passes the DREAM Act,” available at http://cyrusmehta.blogspot.com/2010/12/keeping-hope-alive-president-obama-can.html. Mr. Mehta also co-authored an article, “Keeping Track: Select Issues in Employer Sanctions and Immigration Compliance,” available at https://www.abil.com/articles/ABIL%20Articles%20-%20I-9%20-%20Employer%20Sactions%20&%20Immigration%20Compliance%20(Mehta).pdf.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) has published a new blog entry, “The 2010 Nation of Immigrators Awards – The IMMIs,” which takes a look back at “365 days of immigration dysfunction – American style.” The blog is available at http://www.nationofimmigrators.com/?p=375. He also recently published “Immigration DREAMers and the Way Forward: An Open Letter to President Obama,” available at http://www.nationofimmigrators.com/?p=374. Mr. Paparelli may be followed on Twitter at http://twitter.com/angelopaparelli.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in a December 22, 2010, Reuters article about the EB-5 immigrant investor program. Mr. Yale-Loehr noted that properly administered, the EB-5 program benefits the U.S. and investors in four ways. “No. 1, it’s a win for the U.S. businesses that might not be able to finish a project but for foreign financing…. No. 2, it’s a win for the foreign investor, obviously, because they get a green card out of it. No. 3, it’s a win for the U.S. taxpayer because they are seeing the benefits of an increase in economic activity at no expense … and No. 4, it’s a win for U.S. workers because jobs are being created.” The article is available at http://ca.reuters.com/article/topNews/idCATRE6BL2KJ20101222.

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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

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