USCIS announced relief for Japanese, Pacific nationals stranded in U.S. following quake, tsunami

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U.S. Citizenship and Immigration Services announced on March 11, 2011, the following relief for Japanese and other nationals from the Pacific stranded in the U.S. due to the earthquake and tsunami disasters in Japan:

This advisory is for Japanese and other foreign nationals from the Pacific stranded in the United States due to the earthquakes and tsunami devastation. If you have exceeded or are about to exceed your authorized stay in the U.S. you may be permitted up to an additional 30 days to depart.

Visitors traveling under the Visa Waiver Program (VWP):

  • If you are at an airport, contact the U.S. Customs and Border Protection office at the airport
  • All others, please visit the local U.S. Citizenship and Immigration Services office

Visitors traveling under a nonimmigrant visa:

  • Visit the local U.S. Citizenship and Immigration Services office
  • Bring your passport, evidence that you are stranded (such as an itinerary for the cancelled flight), and your I-94 departure record

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=89a8ce68596ae210VgnVCM100000082ca60aRCRD&vgnextchannel=e7801c2c9be44210VgnVCM100000082ca60aRCRD.

Additional immigration relief options are available on the Special Situations Web page at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f34d3e4d77d73210VgnVCM100000082ca60aRCRD&vgnextchannel=f34d3e4d77d73210VgnVCM100000082ca60aRCRD.

AUSTRALIA: Impending Changes to Living Away From Home Allowance Rules

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Currently, employees living away from home to perform their employment duties in Australia may be eligible for tax-free benefits for reasonable housing and food costs under the Living Away From Home Allowance (LAFHA) rules. Changes have been proposed to start on July 1, 2011, to address the perceived abuse of these LAFHA tax concessions.

As a result of the proposed changes, employers of foreign workers in Australia will need to consider their recruitment and retention strategies, current contracts of employment, and whether to facilitate transition of current sponsored temporary residence employees to permanent residence.

Essentially, employers have three key options to consider:

  1. increasing the foreign worker’s remuneration so that his or her take-home pay is not affected;
  2. continuing to pay the LAFHA, which means the foreign worker will pay tax under the income tax regime; or
  3. renegotiating contracts of employment so that the foreign worker is reimbursed for reasonable accommodation and food expenses. In this case, the employer incurs a fringe benefit tax liability.

News from the Alliance of Business Immigration Lawyers Vol. 7, No. 3B • March 15, 2011

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Headlines:

1. USCIS Proposes Rule on Registration Requirement for H-1B Petitioners – The rule, which would not take effect until next year, proposes to require employers seeking to petition for H-1B cap-subject workers to first file electronic registrations during a designated registration period.

2. USCIS Announces Relief for Japanese, Pacific Nationals Stranded in U.S. Following Quake, Tsunami – Those who have exceeded or are about to exceed their authorized stay in the U.S. may be permitted up to an additional 30 days to depart.

3. USCIS Provides Interim EADs To Some Salvadorans – USCIS mailed approximately 4,500 interim EADs to Salvadorans who have not yet received a final action on their re-registration applications.

4. New Mumbai U.S. Consulate To Open Later in 2011; H and L Interviews Limited in Meantime – New H and L interviews may be scheduled at other U.S. Consulates in India or at the U.S. Embassy in New Delhi.

5. USCIS To Permanently Close Vietnam Office on March 31 – As of March 25, applications and petitions previously accepted by the USCIS Ho Chi Minh City Field Office may be filed with the U.S. Department of State Consular Section there.

6. Obama Won’t Support DOMA in Court Challenges: Business Immigration Implications – President Obama has determined that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and will no longer defend it in court.

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

8. Member News – Member News

9. Government Agency Links – Government Agency Links

Details:

1. USCIS Proposes Rule on Registration Requirement for H-1B Petitioners

The Department of Homeland Security has proposed to amend its regulations on petitions filed on behalf of H-1B workers subject to annual numerical limitations or exempt from numerical limitations by virtue of having earned a U.S. master’s or higher degree. The rule proposes to require employers seeking to petition for H-1B cap-subject workers to first file electronic registrations with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period.

USCIS estimated that the proposed rule could save U.S. businesses more than $23 million over the next 10 years by minimizing administrative burdens and related expenses. The agency said the registration system would save employers the effort and expense of filing H-1B petitions, as well as labor condition applications, for workers who would be unable to obtain visas under the statutory cap. USCIS estimated that the registration process would take 30 minutes to complete.

Under the proposed rule, if USCIS anticipates that the H-1B cap will not be reached by the first day upon which H-1B petitions may be filed for a particular fiscal year, USCIS would notify all registered employers that they are eligible to file H-1B petitions on behalf of the beneficiaries named in the selected registrations. USCIS would continue to accept and select registrations until the H-1B cap is reached. On the other hand, if USCIS anticipates that the H-1B cap will be reached by the first day upon which H-1B petitions may be filed for a particular fiscal year, USCIS would close the registration before such date and randomly select a sufficient number of timely filed registrations to meet the applicable cap.

USCIS proposes to allow only those petitioners whose registrations are randomly selected to file H-1B petitions for the cap-subject prospective worker named in the registration. USCIS would create a waitlist containing some or all of the remaining registrations, based on USCIS statistical estimates of how many more registrations may be needed to fill the caps should the initial pool of selected registrations fall short. USCIS would notify the employers of those registrations placed on the waitlist when and if they are eligible to file an H-1B petition. Employers whose registrations were neither randomly selected to file petitions nor placed on the waitlist would receive notification that they were not selected to file petitions in that fiscal year.

USCIS said it anticipates that this new process “will reduce administrative burdens and associated costs on employers who currently must spend significant time and resources compiling the petition and supporting documentation for each potential beneficiary without certainty that the statutory cap has not been reached.” The proposed mandatory registration process also “will alleviate administrative burdens on USCIS service centers that process H-1B petitions,” the agency said.

Written comments must be submitted by May 2, 2011. This means that the final rule will not take effect until the 2012 H-1B filing season.

The proposed rule is available at http://edocket.access.gpo.gov/2011/pdf/2011-4731.pdf. The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ee87bbd04337e210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b02864337c77e210VgnVCM100000082ca60aRCRD&vgnextchannel=8a2f6d26d17df110VgnVCM1000004718190aRCRD.

 

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2. USCIS Announces Relief for Japanese, Pacific Nationals Stranded in U.S. Following Quake, Tsunami

U.S. Citizenship and Immigration Services announced on March 11, 2011, the following relief for Japanese and other nationals from the Pacific stranded in the U.S. due to the earthquake and tsunami disasters in Japan:

This advisory is for Japanese and other foreign nationals from the Pacific stranded in the United States due to the earthquakes and tsunami devastation. If you have exceeded or are about to exceed your authorized stay in the U.S. you may be permitted up to an additional 30 days to depart.

Visitors traveling under the Visa Waiver Program (VWP):

Visitors traveling under a nonimmigrant visa:

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=89a8ce68596ae210VgnVCM100000082ca60aRCRD&vgnextchannel=e7801c2c9be44210VgnVCM100000082ca60aRCRD.

Additional immigration relief options are available on the Special Situations Web page at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f34d3e4d77d73210VgnVCM100000082ca60aRCRD&vgnextchannel=f34d3e4d77d73210VgnVCM100000082ca60aRCRD.

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3. USCIS Provides Interim EADs To Some Salvadorans

U.S. Citizenship and Immigration Services (USCIS) announced on March 8, 2011, that it sent some existing Salvadoran temporary protected status (TPS) beneficiaries interim employment authorization documents (EADs) during the continued processing of their re-registration applications. USCIS mailed approximately 4,500 interim EADs to Salvadorans who have not yet received a final action on their re-registration applications.

Issuance of the interim EADs allows TPS beneficiaries to continue working while USCIS completes the processing of their re-registration applications. The original expiration date for Salvadoran EADs was September 9, 2010. USCIS had automatically extended this validity period to March 9, 2011.

USCIS has already processed over 208,000 Salvadoran re-registration applications for the current TPS extension period ending March 9, 2012.

Any re-registration applicant who receives an interim EAD must still respond to any USCIS requests for additional evidence, including requests for documents, or biometric or fingerprint appointments.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1401a07eb269e210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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4. New Mumbai U.S. Consulate To Open Later in 2011; H and L Interviews Limited in Meantime

A new U.S. Consulate is being constructed for Mumbai, scheduled to open later in 2011. No new H and L appointments are being made at the current Mumbai Consulate, which has limited interview capabilities due to aging infrastructure. New H and L interviews may be scheduled at other U.S. Consulates in India or at the U.S. Embassy in New Delhi.

For more information, see http://www.vfs-usa.co.in/USIndia/news.html.

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5. USCIS To Permanently Close Vietnam Office on March 31

U.S. Citizenship and Immigration Services (USCIS) has announced that it will permanently close its field office in Ho Chi Minh City, Vietnam, on March 31, 2011. As of March 25, applications and petitions previously accepted by the USCIS Ho Chi Minh City Field Office may be filed with the U.S. Department of State Consular Section there. Where authorized, the Consular Section will assume responsibility for processing certain cases.

For details, including contact information for queries, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=48f1b3e38c19e210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. Obama Won’t Support DOMA in Court Challenges: Business Immigration Implications

The Justice Department announced in February that based in part on the recommendation of Attorney General Eric Holder, President Barack Obama has determined that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and will no longer defend it in court. This is because, facing litigation within the jurisdiction of a circuit court of appeals (the Second Circuit) that has never ruled on the appropriate standard of review to be applied to laws concerning sexual orientation, the administration determined that a heightened standard of review is appropriate, and that Section 3 of DOMA cannot withstand review under such a standard (although the Justice Department had previously argued that Section 3 could survive the looser rational-basis test applicable under the precedent of some courts of appeals).

Many people in same-sex marriages file business immigration applications because they have no alternative. Their applications may be backlogged due to numerical limitations. This issue is also important from a business immigration perspective because many beneficiaries of both I-140 immigrant visa petitions and nonimmigrant visa petitions may be in same-sex marriages that have been legally recognized in other countries and some states within the U.S., but they cannot avail of derivative status, such as H-4 or L-2 (which also carries with it work authorization privileges) or even derivatively obtain permanent residence with the principal.

Such people, along with their employers, should be advised about the paradigm shift in the administration’s position on DOMA, and the potential to challenge existing Department of Homeland Security (DHS) policy in litigation, which the Department of Justice will no longer oppose. Even if an affected individual chooses not to litigate, it is expected that someone will eventually challenge DHS policy, and if it succeeds, which is more likely now than ever before, it will benefit everyone in the same situation.

On the other hand, given the uncertainty regarding the timing and nature of final judicial action on this subject, it would be extremely risky for same-sex married couples to affirmatively seek immigration benefits in reliance on this announcement. It could even be risky for same-sex couples to marry in reliance on the announcement, if the current status of one of the spouses depends on showing a foreign residence and no intent to abandon it (such as with a B-1/B-2 visitor or F-1 student).

For more on this issue, see http://cyrusmehta.blogspot.com/2011/02/potential-immigration-implications-for.html. The Attorney General’s statement is available at http://www.justice.gov/opa/pr/2011/February/11-ag-222.html.

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7. New Publications and Items of Interest

Consular interview preparation video. A short video, available at no charge from “path2usa.com,” explains how to prepare for a consular interview and what to expect. See http://www.youtube.com/watch?v=vgX7dGyziCI.

GAO on export controls. The U.S. Government Accountability Office (GAO) has published Export Controls: Improvements Needed to Prevent Unauthorized Technology Releases to Foreign Nationals in the United States. The report notes that four factors together may indicate the risk that foreign nationals could gain unauthorized access to controlled dual-use technology. First, foreign businesspeople, scientists, engineers, and others have gained unauthorized access in the United States to controlled dual-use technologies. Second, during fiscal years 2004 through 2009, the Department of Commerce suspended the export privileges of three violators and fined 14 U.S. companies about $2.3 million for allowing foreign nationals unauthorized access to controlled technologies. Third, Commerce’s screening of overseas visa applications for potential unlicensed deemed exports dropped from 54,000 in fiscal year 2001 to 150 in fiscal year 2009. Fourth, from fiscal years 2004 to 2009, the United States issued about 1.05 million specialty occupation visas in high-technology fields to foreign nationals from 13 countries of concern, while Commerce issued deemed export licenses authorizing transfers of technology to about 3,200 foreign nationals from these countries. The report notes that Commerce and U.S. Immigration and Customs Enforcement have not implemented prior recommended changes to the deemed export licensing process, and that confusion remains. As a result, employers may not be aware of deemed export licensing requirements and how to obtain the licenses required.

The report (GAO-11-354) is available at http://www.gao.gov/products/GAO-11-354.

OIG report on WHTI. The Department of Homeland Security’s Office of Inspector General has published Customs and Border Protection Needs to Improve Its Inspection Process for the Western Hemisphere Travel Initiative. The report finds that generally, U.S. Customs and Border Protection (CBP) has successfully implemented the Western Hemisphere Travel Initiative (WHTI) in the air environment, reporting high compliance rates among air passengers. The new documentation requirements have improved CBP officers’ ability to validate the identity and citizenship of compliant air passengers, allowing officers to spend more time inspecting travelers without passports.

The report notes, however, that there is inadequate assurance that CBP officers verified the identity and citizenship of all individuals who failed to provide a passport or other WHTI-compliant documentation; CBP officers did not always document the basis for their decisions to admit air passengers who were noncompliant with the new document requirements. Also, they did not always follow CBP policy for referring all such noncompliant passengers to a secondary inspection area for a more thorough review. The report says that these shortfalls may be attributed to inadequate officer training and oversight, and a lack of guidance. “Failure to establish the identities and citizenship of all air passengers is a vulnerability that could be exploited by individuals intent on harming this country,” the report warns, making four recommendations to improve the agency’s implementation of the WHTI’s new documentation requirements. The report also includes the CBP’s responses to the OIG’s recommendations.

The OIG’s report is available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_11-43_Feb11.pdf.

Advisory committee on free trade and labor issues. The National Advisory Committee for Labor Provisions of U.S. Free Trade Agreements has been reestablished. The committee will provide its views to the Secretary of Labor through the Department of Labor’s Bureau of International Labor Affairs. The committee will include 12 members, four representing the labor community, four representing the business community, and four representing the public.

The Bureau of International Labor Affairs serves as the U.S. point of contact for various U.S. free trade agreements. The committee also may be asked to provide advice on the implementation of labor provisions of other free trade agreements to which the U.S. may be a party or become a party. The committee will be asked to provide advice on issues within the scope of the North American Agreement on Labor Cooperation and the labor provisions of the free trade agreements, including cooperative activities and the labor cooperation mechanism of each free trade agreement. Members of the Committee will not be compensated for their services or reimbursed for travel expenses.

The announcement is available at http://edocket.access.gpo.gov/2011/pdf/2011-5637.pdf.

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8. Member News

H. Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm?c=US) has announced the next Klasko, Rulon, Stock & Seltzer annual spring seminar, to be held April 12, 2011, from 9:30 a.m. to 1 p.m. at The Union League of Philadelphia. Topics will include updates on legislation, special handling, worksite enforcement, USCIS, CBP, DOL, new export control requirements, and EB-2/EB-3 strategy, and there will be a corporate roundtable. For more information, call (215) 825-8600.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm?c=US), Francis Chin (bio: https://www.abil.com/lawyers/lawyers-chin.cfm?c=US), and Sharon Mehlman (bio: https://www.abil.com/lawyers/lawyers-mehlman.cfm?c=US) spoke at the American Immigration Lawyers Association’s New England immigration law conference (Advanced Immigration Strategies: The Government Answers Your Questions) in Boston, Massachusetts, on March 4, 2011. Conference topics included USCIS Service Center and Lock Box procedures, NVC processing, CBP issues, an inter-agency panel, advanced business concerns, and advanced EOIR practice.

Robert Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm?c=US) will speak at “Hiring Foreign Nationals – Deemed Exports and Tax Considerations,” to be held on March 31, 2011, from 9 a.m. to 12:30 p.m. at the International Center of Austin in Texas. The session will provide an overview of the new immigration requirements regarding deemed export issues, the deemed export rule and export regulations applicable to controlled technology, practical recommendations regarding internal access control implementation, and considerations associated with the hiring of foreign nationals. For more information or to register, see http://www.cvent.com/events/hiring-foreign-nationals-deemed-exports-tax-considerations/event-summary-2c1a188b3e5a42ccaf5d1730184c5d3c.aspx.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) will present at an American Immigration Lawyers Association seminar, “Dual Representation in Employment-Based Cases,” to be held on March 22, 2011, starting at 2 p.m. eastern time. Presenters will discuss ethical considerations and pitfalls when representing both employer and employee. For more information or to register, see http://www.aila.org/content/default.aspx?docid=33696. Questions may be e-mailed to conferences@aila.org, or call (202) 507-7644.

Mr. Mehta recently presented at a New York City Bar seminar, “Administrative Action as an Alternative to Immigration Reform,” which was held on March 8, 2011. The panel discussed administrative discretionary measures as a substitute for immigration reform legislation.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US) has published several new blog entries. “I Am Furious (Yellow) – At USCIS and its AAO” recognizes USCIS’s achievements but faults it for “its toleration, coddling and empowerment of adjudicative officers in its own agency who…(in most instances) lack admission to any state bar and are beholden to no canons of legal ethics.” The blog is available at http://www.nationofimmigrators.com/i-am-furious-yellow—-at-uscis/. “Granular and Possibly Grand Immigration Reform” discusses the tension between federal power and states’ rights, and looks at Utah’s proposed immigration-related legislation in depth. The blog is available at http://www.nationofimmigrators.com/immigration-reform/granular-and-possibly-grand-legal-immigration-immigration-reform/.

Several ABIL members spoke at an EB-5 immigrant investor conference sponsored by the American Immigration Lawyers Association in Las Vegas, Nevada, on March 14, 2011. Mr. Klasko spoke on EB-5 lore versus law and on ethical issues. Bernard Wolfsdorf (bio: https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm?c=US) moderated a panel on determining when and whether the EB-5 category is the best choice for potential investors. Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) spoke on a panel about potential pitfalls in removing conditions for EB-5 investors.

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9. Government Agency Links

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

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

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

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

 

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Ronald Klasko featured in the World Business Satelllite on the EB-5 Visa program

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On March 10, H. Ronald Klasko was interviewed by World Business Satellite on the EB-5 Visa program. The show aired nationwide in Japan on TV Tokyo and covered many aspects of how foreign capital is being used to fund U.S. real estate projects including the Jay Peak Ski Resort.

Chairman of the EB-5 Investor Committee of the American Immigration Lawyers Association (AILA), Ron explained that foreign investors can get a fast track green card to live in the US by investing in projects that create jobs. The program allows for a $500,000 investment by the foreign investor in projects designated as “regional centers”. Developers are actively trying to get such designations for their projects.”

H. Ronald Klaso’s Biography

News from the Alliance of Business Immigration Lawyers Vol. 7, No. 3A • March 01, 2011

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Headlines:

1. Mayorkas Discusses USCIS Goals for 2011; VIBE System Introduced – The Alliance of Business Immigration Lawyers recommends that clients check their profile and make sure that the major areas are correct to avoid requests for evidence in the future.

2. E-Verify Self-Check Going Live in March – The self-check process is voluntary and available to any individual who wants to check his or her own work authorization status before employment and facilitate correction of errors in federal databases.

3. DOL Posts New FAQ for H-1B, H-1B1, E-3 Programs; Releases New Data – The Office of Foreign Labor Certification has posted a new FAQ for the H-1B, H-1B1, and E-3 programs.

4. DOS Releases New Guidance on L Visas, Specialized Knowledge – DOS noted “concern about the potential for inconsistent adjudicatory standards at different constituent posts,” and said that “clear standards would allow for more consistent adjudication.”

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. Mayorkas Discusses USCIS Goals for 2011; VIBE System Introduced

On February 17, 2011, Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services (USCIS), held a press conference at which he discussed the agency’s goals for 2011 and a policy review already underway. The agency’s goals and planned activities for 2011 include, among others:

  • Piloting the Validation Instrument for Business Enterprises (VIBE) tool, which uses commercially available information from Dun & Bradstreet to validate evidence submitted by companies petitioning to employ a foreign worker in the U.S.
  • Promoting consistency in the administration of immigration laws and adjudication policies as part of a comprehensive policy review, and updating policies where necessary
  • Issuing precedent decisions from the Administrative Appeals Office on a regular basis
  • Combating fraud, including the unauthorized practice of law
  • Combating fraud, including the unauthorized practice of law

USCIS has begun beta-testing the VIBE system. USCIS promised that it will give employers an opportunity to respond when the VIBE system leads to agency concerns regarding the business. The Alliance of Business Immigration Lawyers (ABIL) recommends that clients check their profile and make sure that the major areas (company address for example) are correct to avoid requests for evidence in the future. Contact your ABIL attorney for guidance.

The transcript of the press conference is available at http://www.uscis.gov/USCIS/News/2011%20New%20Items/February%202011/transcript_StrategicGoalsInit_2011.pdf.

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2. E-Verify Self-Check Going Live in March

The Department of Homeland Security (DHS) is establishing a new self-check process for E-Verify, effective March 18, 2011. The self-check process is voluntary and available to any individual who wants to check his or her own work authorization status before employment and facilitate correction of errors in federal databases (such as those of the Social Security Administration, DHS, and the Department of State) that feed information into the E-Verify process. DHS said E-Verify Self-Check “provides a vehicle for an individual to proactively check work authorization status prior to the employer conducting the E-Verify inquiry.”

DHS noted that when an individual uses E-Verify Self-Check, he or she will be notified either that (1) the information matched the federal databases and the individual would be deemed work-authorized, or (2) there was a “mismatch,” in which case he or she will be given instructions on how to correct the record(s).

The notice announcing the new system and inviting comments, which must be submitted by March 18, 2011, is available at http://www.gpo.gov/fdsys/pkg/FR-2011-02-16/pdf/2011-3490.pdf.

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3. DOL Posts New FAQ for H-1B, H-1B1, E-3 Programs; Releases New Data

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has posted a new frequently asked questions (FAQ) document for the H-1B, H-1B1, and E-3 programs. The FAQ discusses, among other things, which visa classifications require the filing of a labor condition application (LCA); the definition of a “specialty occupation”; how to obtain H-1B disclosure information or file an H-1B complaint; details on initiating the hiring and application processes; LCA requirements; prevailing wage issues; notice requirements; working conditions; post-LCA-approval changes; termination of employment; and other issues.

Among other things, the FAQ notes that H-1B complaints should be filed with the local Wage and Hour Division office that has jurisdiction over the physical location of the employer. The OFLC suggests checking the “blue pages” in the telephone book or http://www.dol.gov/whd/america2.htm#Map. The form for filing a complaint (Form WH-4) may be downloaded at http://www.dol.gov/whd/forms/fts_wh4.htm.

The FAQ is available at http://www.foreignlaborcert.doleta.gov/pdf/H1BFAQ021711.pdf.

The OFLC also is now making available quarterly disclosure files covering employer applications processed under the PERM, H-1B, H-2A, and H-2B visa programs. Additionally, the OFLC is publishing a new set of case level data covering employer requests for prevailing wage determinations processed by the OFLC National Prevailing Wage Center, which opened in January 2010 in Washington, DC.

The new data are available at http://www.foreignlaborcert.doleta.gov/quarterlydata.cfm.

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4. DOS Releases New Guidance on L Visas, Specialized Knowledge

The Department of State (DOS) released a new cable in January to all diplomatic and consular posts on guidelines for L visa adjudications, particularly in regard to evaluating claims of “specialized knowledge.” DOS noted “concern about the potential for inconsistent adjudicatory standards at different constituent posts,” and said that “clear standards would allow for more consistent adjudication.” The cable adds, however, that “[u]nfortunately, the statutory language defining ‘specialized knowledge’ is not simple or clear.”

The cable notes that a worker is considered to be serving in a capacity involving specialized knowledge with respect to a company if he or she “has a special knowledge of the company product and its application in international markets or has an advanced level of knowledge of processes and procedures of the company.” The cable acknowledges that the definition contains undefined terms and elements of circular reasoning.

Given the lack of statutory clarity, the cable notes that determinations of specialized knowledge often depend on the consular officer’s expertise on a case-by-case basis. The cable, which outlines criteria that posts may use in making such adjudications, is available at http://travel.state.gov/pdf/Guidance_on_L_Visas_and_Specialized_Knowledge-Jan2011.pdf.

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5. New Publications and Items of Interest

AAO on precedent decisions. The Administrative Appeals Office (AAO) of U.S. Citizenship and Immigration Services recently released a presentation, “Administrative Appeals Office: Precedent Decisions.” The presentation discusses the nuts-and-bolts of what a precedent decision is and is not, and how precedent decisions are published. The presentation also briefly discusses the history of the publication of immigration-related precedent decisions. As noted above in the first article, the AAO plans to publish more precedent decisions in the future.

The presentation is available at http://www.uscis.gov/USCIS/Laws/AAO/AAO%20DHS%20Precedent%20Decision%20Process%20Print%20Version.pdf.

U.S. citizenship test – wrong answers? An article in the February 23, 2011, issue of Slate magazine online discusses incorrect answers on the U.S. citizenship test. For example, the article notes that question 36 asks the applicant to name two members of the President’s Cabinet. One of the possible answers listed is “Vice President”; although the vice president is a Cabinet-level officer, he is not a member of the President’s Cabinet because only unelected heads of executive departments are considered as such, and the Vice President is elected. The article is available at http://www.slate.com/id/2286258/pagenum/all/#add-comment.

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6. Member News

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm?c=US) has published an editorial, “Unconstitutional Arizona-Style Laws Are a Bonanza to Lawyers,” in the February 23, 2011, issue of the Atlanta Journal-Constitution. Mr. Kuck noted that such a law in Georgia would “increase taxes on every resident of Georgia by increasing government regulation, create unfunded mandates for every county and city in Georgia, and create new private rights of action against every Georgia polity, resulting in hundreds of lawsuits that will drain taxpayer coffers and result in little, if any, real change in illegal immigration.” The editorial is available at http://www.ajc.com/opinion/pro-con-does-georgia-850454.html (scroll down).

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) has published a new blog entry. “EAWA Has Sunset” notes that Congress has not passed legislation to extend the “Employ American Workers Act,” which created additional attestation requirements for employers filing H-1B visa petitions who received funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act. Mr. Mehta called EAWA “a blatant exercise in American protectionism.,” and said, “Thank goodness that the EAWA has sunset so that the best and brightest from all over the world, especially foreign students who have graduated from American universities, can be employed like other H-1B workers at institutions that need their talent to recover from the Great Recession, and thrive and prosper.” The blog is available at http://cyrusmehta.blogspot.com/2011/02/eawa-has-sunset.html.

Mr. Mehta will serve as program chair for PLI Basic Immigration Law 2011, to be held on March 17, 2011, in New York and via Webcast. This program will explain the basic concepts of U.S. immigration law and procedure, and reflect current developments and trends, including developments relating to Arizona’s immigration law. Attendees will receive a course handbook with articles by leading practitioners and sample documents and forms. For more information, see http://www.pli.edu/Content.aspx?dsNav=N:4294966198-164&ID=99843.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US) has published several new blog entries. “Immigration ICE Storms Are Brewing: 7 Steps Employers Must Take Now” discusses an article Mr. Paparelli co-wrote on precautions employers should take in a time of heightened inspections. The blog, which includes tips for employers, is available at http://www.nationofimmigrators.com/i-9s/immigration-ice-storms-are-brewing-employers-must-take-shelter/. “Time for Congress To Streamline the H-1B Process” discusses the hodgepodge of the current H-1B process and recommends changes. For example, Mr. Paparelli argues that eliminating the labor condition application (LCA) review by the Department of Labor would shave seven days off the time it takes before USCIS can adjudicate an H-1B petition, since this is the time Congress provided the DOL to “certify” the LCA. This savings of time, he says, is especially important each year in March “when every day counts as employers scramble to file their H-1B petitions by April Fools’ Day in order to fall within the woefully small H-1B annual quota.” The blog is available at http://www.nationofimmigrators.com/immigration-reform/time-to-streamline-the-h-1b-visa/index.html.

Mr. Paparelli was recently quoted in Human Resource Executive Online. In an article published on February 15, 2011, on keeping foreign Ph.D. graduates in the U.S., Mr. Paparelli suggested that U.S. efforts to remain competitive would be better served by a market-based H-1B system rather than Congress setting an arbitrary, fixed number. “Why have a quota on additional bright people in this country when the market [for talent] is [tight]?” he asked. The article is available at http://www.hreonline.com/HRE/story.jsp?storyId=533330181.

Mr. Paparelli and Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) will present in a Webinar, “U.S. Investment Visas and Green Cards for Foreign Clients – A Webinar for Corporate and Tax Lawyers,” to be held on Tuesday, March 8, 2011. They will discuss the advantages and disadvantages of the various visa options for entrepreneurs, along with tax and corporate law considerations. For more information, see http://www.martindale.com/Communities/Connected_Pulse/Member_Events/2011/foreign_entrepreneurs_immigration_options.aspx.

 

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7. Government Agency Links

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

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

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

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

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