News from the Alliance of Business Immigration Lawyers Vol. 7, No. 3B • March 15, 2011
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.
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):
- 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.
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.
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.
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.
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.
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.
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 [email protected], 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.
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