News from the Alliance of Business Immigration Lawyers Vol. 7, No. 4B • April 15, 2011

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Headlines:

1. DOS Reports on Employment-Based Visa Demand; First Preference ‘Extremely Low’ – Demand in the employment first preference is extremely low; it also appears unlikely that a second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high.

2. Case Updates: El Badrawi; Arizona – An H-1B worker who had timely sought an extension could not be arrested or subjected to removal; the Ninth Circuit affirmed an injunction against several controversial aspects of Arizona’s S.B. 1070.

3. USCIS Reviews Policy on H-1B Cap Exemptions Based on Higher Ed Relation or Affiliation – Until further guidance is issued, USCIS is applying interim procedures to H-1B nonprofit entity petitions filed with the agency seeking an exemption from the statutory cap based on an affiliation with or relation to an institution of higher education.

4. USCIS Continues To Accept FY 2012 H-1B Petitions – The agency has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.

5. DOL Orders School District To Pay Foreign Teachers Millions in Back Wages – School authorities had required the teachers to cover expenses for their H-1B work visas, in violation of the law.

6. Foreign Affairs Manual Guidance Revised on License Requirements for H-1Bs – The manual was revised to better reflect actual USCIS practice.

7. USCIS Issues Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students Under H-1B Cap-Gap Regs – Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for the cap-gap extension, USCIS said.

8. USCIS Issues Guidance on Concurrent Advance Parole, EAD – USCIS released a guidance memorandum on issuance of employment authorization documents with advance parole endorsements.

9. El Paso Passport Agency Opens – The new agency is located at 303 North Oregon Street in the Anson Mills Building, a few blocks from the U.S.-Mexico border.

10. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.

11. ABIL Global Mobility Conference – This half-day free conference will help guide professionals involved in global mobility issues to be better equipped when conducting business transactions in another country.

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

13. Member News – Member News

14. Government Agency Links – Government Agency Links

Details:

1. DOS Reports on Employment-Based Visa Demand; First Preference ‘Extremely Low’

The Department of State’s Visa Bulletin for May 2011 notes that demand in the employment first preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category is expected to remain “Current” for all countries. It also appears unlikely, the Bulletin says, that a second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high. Based on current indications of demand, the best-case scenarios for cut-off date movement each month during the coming months are as follows:

Employment Second: Demand by applicants who are “upgrading” their status from employment third to employment second preference is very high, but the exact amount is not known. Such upgrades are in addition to the known demand already reported. The Bulletin said this makes it difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. Although thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India employment second preference per-country annual limits, it is not known how the upgrades will ultimately affect the cut-offs for those two countries.

China: An advance in the priority date of zero to three weeks is expected through July. No August or September estimate is possible at this time.

India: An advance in the priority date of one or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time.

Employment Third:

Worldwide: An advance in the priority date of three to six weeks may occur.
China: An advance in the priority date of one to three weeks may occur.
India: An advance in the priority date of zero to two weeks is likely.
Mexico: Continued forward movement is expected; no specific projections at this time.
Philippines: An advance in the priority date of three to six weeks is likely.

The Bulletin notes that the above ranges are estimates based on current demand patterns, and are subject to fluctuations during the coming months. “The cut-off dates for upcoming months cannot be guaranteed, and no assumptions should be made until the formal dates are announced,” the Bulletin warned.

Allocation of “Otherwise Unused” Numbers:

INA § 202(a)(5) provides that if total demand in a calendar quarter will be insufficient to use all available numbers in an employment preference, the unused numbers may be made available without regard to the annual per-country limits. Based on current levels of demand, the Bulletin for May 2011 states that there will be otherwise unused numbers in the employment first and second preferences. Such numbers may be allocated without regard to per-country limits, once a country has reached its preference annual limit. Since under INA § 203(e) such numbers must be provided strictly in priority date order regardless of chargeability, greater number use by one country would indicate greater demand by applicants from that country with earlier priority dates. Based on the amount and priority dates of pending demand and year-to-date number use, a different cut-off date could be applied to each oversubscribed country for the purpose of assuring that the maximum amount of available numbers will be used. The Bulletin noted that a cut-off date imposed to control the use of “otherwise unused” numbers could be earlier than the cut-off date established to control number use under a quarterly or per-country annual limit. For example, at present the India employment second preference cut-off date governs the use of numbers under § 202(a)(5) because India has reached its employment second annual limit. The China employment second preference cut-off date governs number use under the quarterly limit because China has not yet reached its employment second annual limit.

The rate of number use under § 202(a)(5) is continually monitored to determine whether subsequent adjustments are needed in visa availability for the oversubscribed countries. The Bulletin said that this helps assure that all available employment preference numbers will be used and that numbers also remain available for applicants from all other countries that have not yet reached their per-country limits.

As noted above, the number of applicants who may be upgrading their status from employment third to employment second preference is unknown. As a result, the cut-off date that governs use of § 202(a)(5) numbers has been advanced more rapidly than normal, in an attempt to ascertain the amount of upgrade demand in the pipeline while at the same time administering the available numbers. “This action risks a surge in demand that could adversely impact the cut-off date later in the fiscal year,” the Bulletin warned, adding that it also limits the possibility that potential demand would not materialize and the annual limit would not be reached due to lack of cut-off date movement.

The Visa Bulletin for May 2011 is available at http://www.travel.state.gov/visa/bulletin/bulletin_5424.html.

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2. Case Updates: El Badrawi; Arizona

In El Badrawi v. USA, 07-cv-1074 (D. Conn. Dec. April 11, 2011), the United States District Court in Connecticut ruled that an H-1B worker who had timely sought an extension of that visa status, and who was authorized to continue working under 8 CFR § 274a.12(b)(20), could not be arrested or subjected to removal. Although a district court decision may not have precedential value beyond the plaintiff in the case, it is nevertheless significant because it provides a stepping-stone for other courts to be similarly persuaded.

In U.S. v. Arizona (9th Cir. April 11, 2011), the U.S. Court of Appeals for the Ninth Circuit affirmed an injunction against several controversial aspects of Arizona’s S.B. 1070, which established a variety of immigration-related state offenses and defined the immigration enforcement authority of Arizona’s state and local law enforcement officers.

The district court had granted the United States’ motion for a preliminary injunction in part, enjoining enforcement of S.B. 1070 sections 2(B), 3, 5(C), and 6, on the basis that federal law likely preempts these provisions. Arizona appealed the grant of injunctive relief, arguing that these four sections are not likely preempted; the United States did not cross-appeal the partial denial of injunctive relief. Thus, the United States’ likelihood of success on its federal preemption argument against these four sections was the central issue the appeal presented.

Among other things, the Ninth Circuit noted that “Congress explicitly required that in enforcing federal immigration law, state and local officers ‘shall’ be directed by the Attorney General. This mandate forecloses any argument that state or local officers can enforce federal immigration law as directed by a mandatory state law.

The Ninth Circuit affirmed the district court’s preliminary injunction order enjoining the controversial provisions, with one partial dissent.

El Badrawi v. USA is available at http://bit.ly/eKuTqS. For a blog on that case, see http://cyrusmehta.blogspot.com/2011/04/victory-in-el-badrawi-v-usa-narrowing.html. U.S. v. Arizona is available at http://www.ca9.uscourts.gov/datastore/opinions/2011/04/11/10-16645.pdf.

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3. USCIS Reviews Policy on H-1B Cap Exemptions Based on Higher Ed Relation or Affiliation

U.S. Citizenship and Immigration Services (USCIS) announced on March 18, 2011, that it is reviewing its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is applying interim procedures to H-1B nonprofit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

Effective as of March 18 and during the interim period, USCIS will defer to prior determinations made since June 6, 2006, that a nonprofit entity is related to or affiliated with an institution of higher education (absent any significant change in circumstances or clear error in the prior adjudication) and, therefore, exempt from the H-1B statutory cap. USCIS noted, however, that the burden remains on the petitioner to show that its organization previously received approvals of its request for an H-1B cap exemption on this basis.

Petitioners may satisfy this burden by providing USCIS with evidence, such as a copy of the previously approved cap-exempt petition (i.e., a Petition for a Nonimmigrant Worker (Form I-129) and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, along with any documentation that was submitted in support of the claimed cap exemption. USCIS suggests that petitioners also include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

USCIS emphasized that these measures will only remain in place on an interim basis.

Evidence of previous determinations of cap exemption will be considered on a case-by-case basis only when submitted with an I-129 petition for H-1B status requesting exemption from the numerical cap, or in response to a Request for Evidence or Notice of Intent to Deny for H-1B petitions currently pending with USCIS claiming exemption from the cap. USCIS accordingly advised petitioners not to send separate correspondence containing their cap-exemption evidence on this issue.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=2eb0652c630ce210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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4. USCIS Continues To Accept FY 2012 H-1B Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on April 8, 2011, that it continues to accept H-1B nonimmigrant petitions that are subject to the fiscal year (FY) 2012 cap. The agency began accepting these petitions on April 1.

USCIS is monitoring the number of petitions received that count toward the congressionally mandated annual H-1B cap of 65,000 and the 20,000 U.S. master’s degree or higher cap exemption. The agency reported that it has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.

Cases for premium processing of H-1B petitions filed during an initial five-day filing window are undergoing a 15-day processing period that began April 7. For all other H-1B petitions filed for premium processing, the processing period begins on the date that the petition is physically received at the correct USCIS Service Center.

Meanwhile, petitions filed by employers who are exempt from the cap, as well as petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years, will not count toward the cap.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ebbdb1a97a53f210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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5. DOL Orders School District To Pay Foreign Teachers Millions in Back Wages

The Department of Labor (DOL) recently ordered the school system in Prince George’s County, Maryland, to pay $1.7 million in penalties and $4.2 million in back wages and penalties to more than 1,000 teachers recruited from foreign countries, many from the Philippines. School authorities had required the teachers to cover expenses for their H-1B work visas, in violation of the law.

Superintendent William R. Hite, Jr., plans to appeal the findings. He noted that the fines “may have a devastating impact on [the Prince George’s County school system] and its employees and the school system’s ability to continue to place a highly qualified teacher in every classroom.”

Under the ruling, the Prince George’s system must pay $4.2 million in back wages to the foreign teachers and $1.7 million in penalties. DOL spokeswoman Elizabeth Alexander said that the school system “refused to acknowledge” the problem sufficiently or to negotiate a settlement. County schools spokesperson Briant Coleman countered that school authorities had been unaware of the requirement and, when informed, “we corrected it immediately and paid the fees ever since.” Ms. Alexander said cases involving other school systems are pending.

An AFL-CIO report found that in 2008, Prince George’s schools obtained approval for 239 petitions for H-1B visas. Baltimore schools obtained 229 such approvals, the report found, and East Baton Rouge Parish schools in Louisiana obtained 205, Dallas schools 105 and New York City schools 96.

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6. Foreign Affairs Manual Guidance Revised on License Requirements for H-1Bs

On March 31, 2011, the Foreign Affairs Manual (FAM) was revised to better reflect actual practice by U.S. Citizenship and Immigration Services:

The requirements for classification as an H-1B nonimmigrant professional may or may not include a license because States have different rules in this area. If a State permits aliens to enter the United States as a visitor to take a licensing exam, then USCIS will generally require a license before they will approve the H-1B petition. However, some States do not permit aliens to take licensing exams until they enter the United States in H-1B status and obtain a social security number. Therefore, a visa should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States. [9 FAM 41.53 N4.1]

The pertinent section of the FAM is available at http://www.state.gov/documents/organization/87226.pdf.

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7. USCIS Issues Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students Under H-1B Cap-Gap Regs

U.S. Citizenship and Immigration Services (USCIS) released a Q&A document on April 1, 2011, addressing the automatic extension of F-1 student status in the U.S. for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011, under the fiscal year (FY) 2012 H-1B cap. Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for the cap-gap extension, USCIS said.

Once a timely filing has been made requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed, USCIS explained. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the U.S.

To obtain proof of continuing status, a student covered under the cap-gap extension should go to his or her designated school official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1.

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status, USCIS said.

USCIS strongly encourages students “to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.”

The USCIS notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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8. USCIS Issues Guidance on Concurrent Advance Parole, EAD

U.S. Citizenship and Immigration Services (USCIS) released a guidance memorandum on issuance of employment authorization documents (EADs) with advance parole endorsements.

Traditionally, USCIS has issued two separate documents, an EAD (Form I-766) and an Authorization for Parole of an Alien into the United States (Form I-512). Although adjudication of an Application for Travel Document (Form I-131) and an Application for Employment Authorization (Form I-765) requires two separate determinations by USCIS adjudicators, USCIS noted that the information required from the applicant and the processes followed by the adjudicator are similar.

USCIS noted that approximately 15% of applicants filing an I-765 based on a pending I-485 also file an I-131 concurrently with, or shortly after filing, the I-485. USCIS said it approves approximately 93% of those applications for ancillary benefits.

The agency therefore determined that it was more cost-effective for the government and more convenient for the applicants to adjudicate the I-765 and I-131 simultaneously and, if both forms are approved, to issue a single document indicating that both ancillary benefits have been granted.

Whenever possible, USCIS said its adjudicators will simultaneously adjudicate concurrently filed applications for employment authorization and applications for advance parole authorization filed by applicants for adjustment of status under 8 CFR § 245 or to register status under 8 CFR § 249. If USCIS approves both applications, it will issue a single document, Advance Parole EAD (Form I-766). USCIS is also reviewing whether it is feasible to expand eligibility for an EAD with advance parole endorsement to other EAD recipients who are eligible for advance parole.

The memorandum is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2011/April/issuance-advance-parole.pdf.

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9. El Paso Passport Agency Opens

The Department of State (DOS) held a ribbon-cutting ceremony on April 8, 2011, to mark the official opening of the El Paso Passport Agency. The new agency is located at 303 North Oregon Street in the Anson Mills Building, a few blocks from the U.S.-Mexico border. DOS said the new agency “alleviates the need for local residents with urgent travel plans to drive or fly to the Houston Passport Agency, approximately 750 miles away, or the Western Passport Center in Tucson, Arizona, approximately 300 miles away.”

The announcement is available at http://www.state.gov/r/pa/prs/ps/2011/04/159682.htm.

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10. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals

A new three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest in the USA, the association of EB-5 regional centers, will help guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. The series will explain immigration options and offer practical real-world strategies:

  • Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held April 13 at 12 noon (Eastern time). Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
  • Session 2: EB-5 regional center applications and project pre-approval petitions, to be held July 6 at 3 pm (Eastern time). Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
  • Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 pm (Eastern time). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

The cost is $89 for an individual session or $249 for all three sessions. To register, go to the ABIL Webinars sign-up page at https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, e-mail Lauren Anderson at lauren@abil.com or visit http://www.abil.com.

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11. ABIL Global Mobility Conference

The Alliance of Business Immigration Lawyers’ (ABIL) Global Immigration Network will present a Global Mobility Conference in London, England, on Thursday, May 5, 2011, from 2 to 5 pm. This half-day free conference will help guide professionals involved in global mobility issues to be better equipped when conducting business transactions in another country. The conference will look at the following areas:

  • Compliance related to immigration and tax, as well as criminal liability
  • Best practices in global mobility through a case study
  • Global mobility trends and hot topics from multiple countries

The conference is presented by ABIL and co-sponsored by Baker Tilly International, a network of accountancy and business advisory firms. For more information, e-mail Lauren Anderson at lauren@abil.com.

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12. New Publications and Items of Interest

House hearing testimony on the H-1B program: Testimony from the March 31, 2011, House Judiciary Subcommittee on Immigration Policy and Enforcement hearing, “H-1B Visas: Designing a Program to Meet the Needs of the U.S. Economy and U.S. Workers,” included Donald Neufeld, Associate Director of USCIS Service Center Operations; Bo Cooper, Partner, Berry Appleman & Leiden LLP; Ron Hira, Ph.D., Associate Professor of Public Policy, Rochester Institute of Technology; and Bruce A. Morrison, Chairman, Morrison Public Affairs Group. Lamar Smith (R-Tex.) chaired the hearing. The testimony is available at http://judiciary.house.gov/hearings/hear_03312011.html.

USCIS naturalization and permanent residence statistics: The Department of Homeland Security has released reports on naturalizations in 2010 and permanent residence in 2010. The reports are available at http://www.dhs.gov/files/statistics/immigration.shtm.

DOL FAQ on requesting an extension for submitting documents: The Department of Labor’s Office of Foreign Labor Certification released a FAQ on what an employer should do if it is unable to provide documentation in response to a decision or a request for information in a timely manner (i.e., before an established deadline), particularly in extenuating circumstances where the deadline is immediate. The FAQ is available at http://www.aila.org/content/default.aspx?docid=35039.

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13. Member News

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) has published a new blog entry. “Deporting A U.S. Citizen Child? Take a Leaf Out of the State Department’s Book on Birthright Citizenship” discusses the case of a four-year-old U.S. citizen child sent to Guatemala by U.S. Customs and Border Patrol, and dual nationality issues. The blog is available at http://cyrusmehta.blogspot.com/.

Mr. Mehta also recently did a podcast for the American Immigration Lawyers Association on “Terminating the Attorney-Client Relationship,” available at http://www.aila.org/content/default.aspx?docid=34999.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US) has published several new blog entries. “Xeriscaped Immigration — With All the Juice Squeezed Out” discusses recent developments, including rumors that there will likely be no let-up in detentions, removals and worksite enforcement actions, and no legislative action or administrative relief on comprehensive immigration reform until after the 2012 elections. The blog also notes that U.S. Citizenship and Immigration Services recently announced that it had received just over 10,000 H-1B visa petitions for foreign workers in specialty occupations (about 5,900 petitions counting toward the 65,000 cap, and roughly 4,500 petitions toward the 20,000 cap for holders of advanced U.S. degrees). The blog is available at http://www.nationofimmigrators.com/xeriscaped-immigration—-with-all-the-juice-squeezed-out/index.html. “Immigration Punking — Left, Right and Center” discusses various tomfoolery and foolishness in the immigration field, some of which is related to April Fool’s Day and some of which is regrettably all-too-real. The blog is available at http://www.nationofimmigrators.com/immigration-reform/immigration-punking—-left-right-and-center/.

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14. 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. 2 • April 01, 2011

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Headlines:

1. USCIS Releases Data at Stakeholders Meeting: EB-5 Visa Usage, RC Filings High – USCIS is on track to approve a record number of EB-5 visas; Regional Center filings in the first quarter of FY 2011 have already exceeded those for all of FY 2010.

2. USCIS Releases Executive Summary of December 2010 EB-5 Investor Quarterly Engagement – In addition to providing various updates on statistics, processing times, and the recently instituted EB-5-related forms, USCIS responded to public input.3. ABIL Webinar Series Starts April 13: U.S. Investment Visas and Green Cards for Foreign Nationals – This three-part series will examine the advantages, disadvantages, and limits of the visa options for foreign investors.4. Member News – Member News5. EB-5 Government Agency Links – EB-5 Government Agency Links

Details:

1. USCIS Releases Data at Stakeholders Meeting: EB-5 Visa Usage, RC Filings High

U.S. Citizenship and Immigration Services (UCSIS) released its latest data on EB-5 filings and Regional Centers (RCs) at its March 17, 2011, EB-5 Stakeholders Meeting held at the California Service Center. USCIS figures show a steep increase in the number of RC filings and EB-5 visa approvals in the first quarter of fiscal year (FY) 2011, which ran from October 1, 2010, to December 31, 2010.

The agency reported 116 initial RC proposal filings in the first quarter of FY 2011, compared to 110 initial filings in all of FY 2010. The number of amended RC proposal filings also increased in the first quarter to 24, an amount equal to 57 percent of the 42 filings received for all of FY 2010.

The agency also reported that it has issued a higher percentage of approvals of RC filings. In the first quarter of FY 2011, the agency approved 13 initial RC proposals and denied 4, an approval rate of 76 percent. This was a big increase from FY 2010, when USCIS approved 36 and denied 30, an approval rate of 55 percent. The approval rate of amended RC proposals in the first quarter also rose to 78 percent, with 7 approvals and 2 denials. By comparison, in FY 2010 USCIS approved 42 amended RC proposals and denied 11, an approval rate of 71 percent. However, at its current rate USCIS would only make a total of 36 final decisions on amended RC filings in FY 2011, while in FY 2010 it made 53 final decisions on amended filings. The rate of USCIS decisions on initial RC filings was essentially unchanged.

USCIS reported that the total number of approved Regional Centers (RCs) is now 125, located in 36 states, the District of Columbia, and Guam.

USCIS also reported significant increases in individual I-526s (Immigrant Petition by Alien Entrepreneur) and I-829s (Petition by Entrepreneur to Remove Conditions). In the first quarter of FY 2011, USCIS received 701 I-526 petitions and is on pace to receive about 2,800 in FY 2011, compared to 1,955 for FY 2010. The increase in the number of I-829 petitions was even more dramatic, with 531 received in the first quarter, a rate that should exceed 2,100 for FY 2011. By comparison, USCIS received 768 I-829 petitions in FY 2010.

However, USCIS also reported decreases in the percentage of approvals. In the first quarter of FY 2011, the agency approved 190 I-526 petitions and denied 56, an approval rate of 77 percent, while its approval rate for FY 2010 was 83 percent. Likewise, USCIS approved 75 percent of I-829 petitions in the first quarter (39 approvals and 13 denials), compared to an approval rate of 83 percent for FY 2010.

The total number of adjudications also declined. USCIS issued a total of 246 decisions on I-526 petitions in the first quarter of FY 2011, compared to 1,534 in FY 2010. The agency also issued only 52 decisions on I-829 petitions in the first quarter, down from 330 for all of FY 2010. USCIS said the decreases in the number of decisions may be attributed to the agency’s recent focus on training additional adjudicators, which “kept many adjudicators from actually deciding cases” during the first quarter.

USCIS also reported that processing times currently exceed their targets for RC filings and I-526 filings. The target processing time for I-526 petitions is 5 months; USCIS reports that actual processing times are reaching 6 months, but some in the field say it is closer to 7 months. USCIS’s target processing time for both initial and amended RC proposals is 4 months, but the agency reported current processing times of 7 months for initial RC filings and 5 months for amended filings. For I-829 filings, the agency reports that it is meeting its target processing time of 6 months.

USCIS also announced that it is on track to approve a record number of EB-5 visas. Its preliminary estimate is that 1,421 EB-5 visas were issued in the first quarter of 2011. At that rate the number of EB-5 visas would approach 6,000 for FY 2011, compared to 1,885 in FY 2010. The previous record was 4,218 EB-5 visas issued in FY 2009.

At the March 17 Stakeholders Meeting, USCIS also said that based on comments it has received, it is reviewing the “Material Change” concept raised in the December 11, 2009, Neufeld memo (http://www.uscis.gov/USCIS/Laws/Memoranda/Static%20Files%20Memoranda/Adjudicating%20of%20EB-5_121109.pdf). The agency did not say when it would decide on any changes to the memo or whether any changes would be made.

USCIS noted that it is acceptable for an RC to pool investments for multiple investment vehicles within certain limits. However, the businesses to be financed must be identified at the time of filing the I-526 petition and the prospective job creation must be documented at that time.

A PowerPoint presentation and other information from the March 17 Stakeholders Meeting are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=68da76be729ce210VgnVCM100000082ca60aRCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD.

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2. USCIS Releases Executive Summary of December 2010 EB-5 Investor Quarterly Engagement

The U.S. Citizenship and Immigration Services (USCIS) Service Center Operations (SCOPS) Directorate and the Office of Public Engagement (OPE) recently released an executive summary of their December 16, 2010, EB-5 Investor Quarterly Engagement. In addition to providing various updates on statistics, processing times, and the recently instituted EB-5-related forms, USCIS responded to input received from the public before the engagement.

The executive summary is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4c68d1f2465ae210VgnVCM100000082ca60aRCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD. The PowerPoint presentation and other related information and links are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=858206489ec6a210VgnVCM100000082ca60aRCRD&vgnextchannel=e0b081c52aa38210VgnVCM100000082ca60aRCRD.

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3. ABIL Webinar Series Starts April 13: U.S. Investment Visas and Green Cards for Foreign Nationals

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, but each has advantages, disadvantages, and limits.

This timely three-part Webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 Regional Centers, will help guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 Regional Centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series will explain immigration options and offer practical real-world strategies:

  • Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or Regional Centers, to be held April 13 at 12 noon (ET). Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
  • Session 2: EB-5 Regional Center applications and project pre-approval petitions, to be held July 6 at 3 pm (ET). Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
  • Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and Regional Centers, to be held August 16 at 3 pm (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

The cost is $89 for an individual session or $249 for all three sessions. To register, go to the ABIL Webinars sign-up page at https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, contact Lauren Anderson at lauren@abil.com or visit http://abil.com.

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4. Member News

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. 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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5. 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. 4A • April 01, 2011

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Headlines:

1. USCIS Begins Accepting H-1B Petitions – As of April 1, 2011, USCIS has begun accepting H-1B petitions subject to the FY 2012 cap of 65,000.

2. USCIS Launches E-Verify Self Check – This new voluntary service enables individuals to check their own employment eligibility status at no charge.

3. New Validation Instrument for Business Enterprises Giving Off Bad VIBE – Some attorneys have reported that the VIBE system, which is based on publicly available information, too often contains inaccuracies, is unreliable, and requires a significant effort to update.

4. USCIS Updates I-129 Instructions Re TARP – Additional requirements under the Employ American Workers Act no longer apply to any H-1B petition requesting an employment start date of February 17, 2011, or later.

5. ICE Announces Prison Term for Employing Undocumented Workers – A Missouri woman was sentenced to a year in prison for transporting, harboring, and hiring undocumented workers at the Chinese restaurant she managed.

6. DOL Issues Proposed Rule on H-2B Temporary Nonagricultural Employment – Among other things, the DOL is revisiting the use of attestations.

7. DHS Issues Interim Final Rule on Guam-Northern Marianas VWP – The rule clarifies the countries and geographic areas eligible for participation in the Guam-CNMI Visa Waiver Program.

8. USCIS Publishes Prevailing Wage Rates for H-2B Construction Workers on Guam – USCIS seeks comments on the system that the Governor of Guam is using to determine prevailing wage rates for construction occupations on Guam.

9. ABIL Global: United Kingdom Update: Tier 1 – The UK government is proposing various measures to reduce immigration and save public funds.

10. ABIL Global: United Kingdom Update: Tier 2 – The UK government is proposing various measures to reduce immigration and save public funds.

11. ABIL Webinar: U.S. Investment Visas and Green Cards for Foreign Nationals – This three-part Webinar series will help guide individual investors and others, as well as U.S. companies that want to attract foreign investors.

12. . Congress Passes ‘CIFAF’ Bill in Dead of Night on April 1 – The new “Comprehensive Immigration Reform April Fools” bill basically lets everyone in, then kicks them all out within 30 days.

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

14. Member News – Member News

15. Government Agency Links – Government Agency Links

Details:

1. USCIS Begins Accepting H-1B Petitions

As of April 1, 2011, U.S. Citizenship and Immigration Services (USCIS) has begun accepting H-1B petitions subject to the fiscal year (FY) 2012 cap of 65,000. Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted, not the date that the petition is postmarked.

USCIS will monitor the number of H-1B petitions received and will announce when the H-1B cap has been met. If USCIS receives more petitions than it can accept, it may on the date the cap is met (the “final receipt date”) randomly select the number of petitions that will be considered for final inclusion within the cap. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.

The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt from the cap. Certain other petitions also are exempt from the congressionally mandated cap. Exempt petitions include those for which the beneficiaries will work at:

  • institutions of higher education or related or affiliated nonprofit entities;
  • nonprofit research organizations; or
  • governmental research organizations.

Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until December 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories for beneficiaries who will start work during FYs 2011 or 2012.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap do not count toward the H-1B cap. USCIS will continue to process petitions filed to:

  • extend the amount of time a current H-1B worker may remain in the United States;
  • change the terms of employment for current H-1B workers;
  • allow current H-1B workers to change employers; and
  • allow current H-1B workers to work concurrently in a second H-1B position.

In the last few years the H-1B cap has not been reached for several months. It will be interesting to see when the cap is reached this year, given the improving economy.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=31f803aea7ace210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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2. USCIS Launches E-Verify Self Check

U.S. Citizenship and Immigration Services (USCIS) launched “E-Verify Self Check” on March 21, 2011. The voluntary service enables individuals to check their own employment eligibility status at no charge. USCIS is releasing E-Verify Self Check in phases, with the first phase accessible only to users who maintain an address and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia, or the District of Columbia.

For more on E-Verify Self Check, including a link to the system, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=2ec07cd67450d210VgnVCM100000082ca60aRCRD&vgnextchannel=2ec07cd67450d210VgnVCM100000082ca60aRCRD.

A related blog and video are available at http://blog.uscis.gov/2011/03/introducing-e-verify-self-check-online.html.

A transcript of the press conference on this topic is available at http://www.uscis.gov/USCIS/News/Transcript_SelfCheckSecrtry.pdf. A fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=9feb59984b9de210VgnVCM100000082ca60aRCRD&vgnextchannel=8a2791daff2df110VgnVCM1000004718190aRCRD.

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3. New Validation Instrument for Business Enterprises Giving Off Bad VIBE

U.S. Citizenship and Immigration Services (USCIS) has begun “beta-testing” the Validation Instrument for Business Enterprises (VIBE) System, which is run by Dun & Bradstreet. VIBE allows USCIS to receive commercially available information about companies or organizations filing certain employment-based petitions. If the U.S. business entity’s information on the petition is inconsistent with what is in VIBE, USCIS issues a request for evidence (RFE).

Some attorneys have reported that the VIBE system, which is based on publicly available information, too often contains inaccuracies, is unreliable, and requires a significant effort to update.

VIBE allows USCIS to electronically receive commercially available information about a petitioning company or organization, including:

  • Business activities, such as type of business (North American Industry Classification System code), trade payment information and status (active or inactive)
  • Financial standing, including sales volume and credit standing
  • Number of employees, including on site and globally
  • Relationships with other entities, including foreign affiliates
  • Status; for example, whether it is a single entity, branch, subsidiary, or headquarters
  • Ownership and legal status, such as LLC, partnership, or corporation
  • Company executives
  • Date of establishment as a business entity
  • Current physical address

A USCIS officer reviews all information received through VIBE along with the evidence submitted by the petitioner. Adjudicators use information from VIBE to verify the petitioner’s qualifications. For example, if a petitioner seeks L-1 status for a beneficiary, VIBE will help adjudicators confirm that the petitioner has a foreign affiliate, a requirement for granting L-1 status. In cases where petitioners must establish ability to pay, information from VIBE will assist in confirming the petitioner’s financial viability.

USCIS said it will not deny a petition based upon information from VIBE without first giving a petitioner “the opportunity to respond to USCIS’s concerns.” USCIS will issue an RFE or a Notice of Intent to Deny (NOID) “if it is necessary to resolve relevant inconsistencies or other issues that emerge upon review of information supplied by VIBE that are material to the benefit requested.” The Immigration Services Officer (ISO) will make a final decision “based on the totality of the circumstances,” the agency said.

Immigrant Classifications Included in VIBE

The following I-140 employment-based immigrant classifications are included in VIBE:

  • E12: Outstanding professor or researcher
  • E13: Multinational executive or manager
  • E21: Member of professions holding an advanced degree or an alien of exceptional ability (with the exception of National Interest Waiver petitions)
  • E31: Skilled Worker
  • E32: Professional
  • EW3: Unskilled/Other Worker

Additionally, the following I-360 employment-based immigrant classifications are included in VIBE:

  • SD1: Minister of Religion
  • SR1: Non-minister in a religious occupation or vocation

Nonimmigrant Classifications Included in VIBE

The following I-129 employment-based nonimmigrant classifications are also included in VIBE:

  • E-1: Treaty Trader
  • E-2: Treaty Investor
  • E-3: Member of specialty occupation who is a national of the Commonwealth of Australia
  • H-1B: Specialty occupation worker
  • H-1B1: Specialty occupation worker from Chile or Singapore
  • H-1B2: Worker performing services related to a Department of Defense (DOD) cooperative research and development project or co-production project
  • H-1B3: Fashion model of distinguished merit and ability
  • H-2A: Temporary or seasonal agricultural worker
  • H-2B: Temporary non-agricultural worker
  • H-3: Trainee or special education exchange visitor
  • L-1A: Intracompany transferee in a managerial or executive position
  • L-1B: Intracompany transferee in a position utilizing specialized knowledge
  • LZ: Blanket L petition
  • Q-1: International cultural exchange visitor
  • R-1: Religious worker
  • TN: North American Free Trade Agreement (NAFTA) professional from Canada or Mexico

To read about categories that are not included and the Alliance of Business Immigration Lawyers’ suggestion, please continue to the Immigration Insider.

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4. USCIS Updates I-129 Instructions Re TARP

Employers who received funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act (“covered funding”) are no longer required to answer Question 1d in Part A of the H-1B Data Collection and Filing Fee Exemption Supplement. The Employ American Workers Act (EAWA) had mandated additional requirements on H-1B petitioners who received covered funding. These requirements ended on February 16, 2011. The additional requirements under EAWA no longer apply to any H-1B petition requesting an employment start date of February 17, 2011, or later.

The updated Form I-129, Petition for a Nonimmigrant Worker, is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f56e4154d7b3d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD.

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5. ICE Announces Prison Term for Employing Undocumented Workers

A Missouri woman was sentenced on March 22, 2011, to a year in prison for transporting, harboring, and hiring undocumented workers at the Chinese restaurant she managed. The sentence resulted from a worksite enforcement investigation conducted by U.S. Immigration and Customs Enforcement (ICE).

ICE reported that Hua Huang was sentenced in the Eastern District of Missouri “on two counts each of harboring, transporting, and employing illegal aliens, and one count each of structuring a financial transaction and conspiring to commit visa fraud.” She pleaded guilty to the charges in December. Upon release from prison, Huang will also serve two years of supervised release with a six-month term of home confinement.

The investigation, which was initiated by the Poplar Bluff, Missouri, Police Department, began in February 2009. ICE joined the investigation in October 2009. The investigation revealed that between January 2009 and August 2010, Huang was manager of the China Buffet/Mongolian Grill in Poplar Bluff. During that time she regularly employed a number of undocumented workers from Mexico and China. The employees typically worked 12-hour shifts, six days a week, and were paid in cash amounts far less than minimum wage. Waiters and waitresses were typically paid in tips only. State and federal taxes were not withheld. Cash sales for the restaurant routinely went unreported.

As a result of surveillance conducted by ICE agents and Poplar Bluff police officers, authorities determined that the workers were being housed or “boarded” in two residences owned by individuals and entities connected to the China Buffet/Mongolian Grill. Authorities observed that the workers were shuttled to and from work daily in a van operated by Ms. Huang or other employees of the business.

On August 4, 2010, federal search warrants were executed at several residences and the China Buffet/Mongolian Grill. During the execution of the search warrants, agents seized a 2008 Highlander sport utility vehicle, a 2005 Chevrolet passenger van, and $34,000 in cash. The van was being operated by Ms. Huang to transport the workers to the China Buffet. As part of the prosecution, the vehicles, cash, and four separate pieces of real estate were ordered forfeited, with a total value of more than $350,000.

In her guilty plea, Ms. Huang also admitted to structuring financial transactions to prevent a local bank from reporting those transactions.

The ICE announcement is available at http://www.ice.gov/news/releases/1103/110322stlouis.htm.

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6. DOL Issues Proposed Rule on H-2B Temporary Nonagricultural Employment

The Department of Labor’s (DOL) Employment and Training Administration and Wage and Hour Division have proposed a rule to revise and solicit comments on the process by which employers obtain temporary labor certifications from the DOL for use in petitioning the Department of Homeland Security (DHS) to employ nonimmigrant workers in H-2B status. The DOL also proposes “to create new regulations to provide for increased worker protections for both U.S. and foreign workers and enhanced enforcement under the H-2B program.”

Among other things, the DOL is revisiting the use of attestations. The DOL said it is interested in receiving comments on the alternative of maintaining the current or some modification of the current attestation-based program design. Specifically, the DOL seeks comments on whether it should develop certain attestations that can be required of all employers (such as an attestation for certain kinds of recruitment), or for only certain program compliance requirements. The DOL proposes to bifurcate the current application process into a registration phase that addresses the employer’s temporary need and an application phase that addresses the labor market test.

The rule also proposes substantive changes to several terms; for example, clarifying what non-agricultural employment is and adding a definition of “area of substantial employment” to the H-2B program. The rule also proposes to amend the definition of “full time” in the H-2B program to mean 35 or more hours per week, instead of the current 30. The DOL said it welcomes comments regarding whether extending the definition of a full-time workweek to at least 40 hours for the H-2B program would better protect U.S. workers and whether it conforms better to employer standards and needs.

Comments may be submitted to the office named in the proposed rule by May 17, 2011. The proposed rule, which was published on March 18, 2011, is available at http://edocket.access.gpo.gov/2011/pdf/2011-6152.pdf.

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7. DHS Issues Interim Final Rule on Guam-Northern Marianas VWP

The Department of Homeland Security (DHS) issued an interim final rule on March 23, 2011, that clarifies the countries and geographic areas eligible for participation in the Guam-Commonwealth of the Northern Mariana Islands (CNMI) Visa Waiver Program.

The rule notes that effective May 23, 2011, individuals holding British National (Overseas) (BN(O)) passports as a result of their connection to the Hong Kong Special Administrative Region are eligible for participation in the Guam-CNMI Visa Waiver Program. The program allows certain nonimmigrant aliens to enter Guam and/or the CNMI as nonimmigrant visitors for business or pleasure without a visa for a period of authorized stay up to 45 days. This interim final rule provides that individuals holding BN(O) passports as a result of their connection to Hong Kong and traveling to Guam and/or the CNMI under the program on such BN(O) passport must present it and a Hong Kong identification card.

Comments may be sent by May 23 to the person named in the interim final rule, which is available at http://edocket.access.gpo.gov/2011/pdf/2011-6555.pdf.

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8. USCIS Publishes Prevailing Wage Rates for H-2B Construction Workers on Guam

U.S. Citizenship and Immigration Services (USCIS) seeks comments on the system that the Governor of Guam is using to determine prevailing wage rates for construction occupations on Guam. In addition, USCIS has posted the most recent prevailing wage rates that have been proposed by the Governor of Guam. Based on its own analysis and input from the public, USCIS will determine whether the prevailing wage rates suggested by the Governor of Guam are reasonable and whether USCIS should require a new system to be used by the Governor of Guam in determining the prevailing wage rates.

Comments are due by April 18, 2011, to the office named in the notice, which is available at http://edocket.access.gpo.gov/2011/pdf/2011-6208.pdf.

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9. ABIL Global: United Kingdom Update: Tier 1

Less migration: The UK government proposes various measures to reduce immigration and save public funds.

On February 16, 2011, the UK Border Agency (UKBA) released a Statement of Intent (SOI) detailing proposals to change the eligibility criteria for the Points-Based System (PBS) Tier 2 migrants and the operation of permanent limits on certain Tier 2 applications. The UKBA also proposed changing the criteria for indefinite leave to remain (ILR) for Tiers 1 and 2 and work permit holders were made. These changes will take effect on April 6, 2011, including the final closure of the Tier 1 (General) category. Increases in application fees have also been proposed due to the need to cut public spending.

The Coalition Government’s overarching aim for UK immigration is to reduce net migration by “selecting the best and brightest.” To help achieve this, UKBA proposes to raise the qualifying thresholds for the Tier 2 category and cap the number of Tier 2 (General) migrants to an annual limit. Moreover, restrictions will extend to the requirements for settlement in the UK to implement the government’s “less automatic settlement” agenda.

UKBA is expected to publish the new Rules and formal guidance shortly.

Proposals for Tier 1 (Highly Skilled)

The final closure of Tier 1 (General) on April 6, 2011, will deal a huge blow to both employers and individuals. After the dubious operational assessment of the category in October 2010, which purported to find that 29% of Tier 1 migrants were in unskilled jobs (the report was based on solely Tier 1 dependents who had been in the UK for six months), UKBA believed it had justification to delete the entire highly skilled migrant category. At least there will be transitional provisions in place for those who will be submitting eleventh-hour Tier 1 (General) applications by post, so that their applications will be assessed in accordance with the Rules in place on the date of application (the date the application is posted).

Under the transitional arrangements, migrants who are not already in Tier 1 (General) or its predecessor category under the highly skilled migrant program will not be permitted to switch into this category beginning on April 6, 2011. The Tier 1 (General) route will remain open to allow those with existing leave to enter or remain under Tier 1 (General) or its predecessor to extend their leave. However, the points threshold for extensions will be raised to 100 points for those who required 100 points when first granted leave.

It is feared by immigration practitioners that the Tier 1 (post study work) category may survive the changes only to be phased out after the new rules are implemented. Generous transitional provisions are anticipated, if this were to be the case.

On a positive note, there are proposals for those recognized as possessing “exceptional talent” from different sectors to be certified as “exceptionally talented.” It will be decided that a migrant meets the “exceptionally talented” criteria by entities who have been delegated the power to certify migrants. The UKBA has yet to set definitive criteria on what will amount to “exceptional talent.” Unsurprisingly, a Nobel prize winner will be viewed as such. The proposals need to be built upon and it is still unclear how the capped allocation of 1,000 migrants for each sector will be managed, let alone how UKBA will deal with an undoubted oversubscription to the category.

Proposals for reform of the Tier 1 Entrepreneur and Investor categories have not yet been published but future (skilled) changes are expected to be nominal.

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10. ABIL Global: United Kingdom Update: Tier 2

Proposals for Tier 2

As the main category for sponsored skilled workers, Tier 2 requires a Certificate of Sponsorship (COS) from the migrant’s licensed sponsor. These will be divided into “Restricted” and “Unrestricted” COS.

Starting April 6, the Restricted COS will be capped at an annual limit of 20,700 – 4,200 of which will be available for the first month and 1,500 available thereafter. It is proposed that if a monthly limit is undersubscribed, the balance will be added to the allocation for the following month. If the monthly limit is oversubscribed, applications will be prioritized based on a new points table. Much like the old work permit scheme, which ironically the PBS was supposed to displace, sponsors will need to apply to the monthly panel for a Restricted COS each time they wish to sponsor a migrant under Tier 2 (General).

This points system will prioritize occupations on the new shortage occupation list followed by occupations at the Ph.D. level and then occupations meeting the resident labour market test (RLMT). Points will also be awarded for salaries ranging from £20,000-£20,999 with further points for salaries of £100,000 to £149,000. Persons in occupations with salaries of less than £20,000 will be unable to meet the minimum points required.

Unrestricted COS are only available for the Tier 2 categories unaffected by the limit. These fortunate few include intracompany transfers, Tier 2 migrants extending with their original employer or switching to a new employer, migrants switching into Tier 2 (General) from a permitted category, applications under transitional arrangements for existing Tier 2 and work permit holders, positions with a salary over £150,000, and Tier 2 sports people or ministers of religion.

Sponsors will be given an initial annual allocation of Unrestricted COS based on UKBA’s consideration of their allocation requests. These surprisingly generous provisions should enable sponsors to continue employing migrants who are extending their leave with their original employer; switching into Tier 2 (General); or are intracompany transfer migrants, without the need for a salary assessment (as there is for Restricted COS). The consequence will no doubt be a rush of annual allocation requests from sponsors who had been stripped of COS under the previous interim limits. Immigration practitioners are concerned that UKBA may not have provided for this or at least included any mechanism to prioritize urgent requests.

As the new graduate occupation and shortage occupation lists are compiled, some occupations are expected to be dropped from the “skilled” threshold. Positions previously on the shortage occupation list may be removed if they do not meet the new graduate-level criteria. Nevertheless, provided the minimum salary levels are defined clearly and the lists compiled in accordance with Migration Advisory Committee (MAC) recommendations, some positions may be elevated to the new skilled level by virtue of the migrants’ previous experience being equivalent to graduate-level. This will apply to all migrants across the board for both Restricted and Unrestricted COS.

Another change proposed for the Tier 2 category is the increased English-language requirement to intermediate English at level B1 on the Common European Framework of Reference for languages. Furthermore, Tier 2 entry clearance applicants will no longer be able to claim points for qualifications.

Settlement

Migrants submitting applications for ILR in the UK on or after April 6, 2011, will be affected by the changes to settlement requirements to be introduced on April 6, 2011. The changes will introduce a new income requirement for Tier 1 (General), Tier 2 (General) and work permit holders applying for settlement; will amend the Knowledge of Language and Life in the UK requirement for Tier 1 (General), Tier 2 (General) and work permit holders; and will clarify the criminality test applied to all applicants for settlement. UKBA’s proposals to tighten settlement requirements bear, on closer inspection, a likeness to the outgoing government’s ideas (published in the “Path to Citizenship” green paper on February 20, 2008) for selecting migrants with “the right values and commitments” who could integrate well into British society. There is one key difference however, as there appears to be no inclination to mimic the “earned citizenship” proposal.

Unfortunately, as changes are proposed for the Tier 1 and Tier 2 categories, UKBA has failed to align its proposals with settlement rules and nationality law. For instance, the lure of “accelerated settlement” for Tier 1 (Entrepreneur) and Tier 1 (Investor) migrants who invest more money into the UK does not factor in the requirement of continuous residence in the UK under the settlement rules, which most entrepreneurs and investors will not be able to meet. UKBA has remained silent on this matter, but it is evident that primary legislation may need to be amended accordingly.

Conclusion

UKBA’s aim to create a “flexible system designed to meet business needs” as well as to reduce net economic migration may seem almost impracticable but may be indeed achieved in part. Though it is a difficult balancing act, it cannot be denied that many potential applicants will now fall short of the higher thresholds, resulting in a net reduction in migration. It remains to be seen whether the new rules will constrict businesses from employing as many non-EEA migrants as required or whether businesses will remain unscathed.

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11. ABIL Webinar: U.S. Investment Visas and Green Cards for Foreign Nationals

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, but each has advantages, disadvantages, and limits.

This timely three-part Webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest in the USA, the association of EB-5 regional centers, will help guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes Individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. The series will explain immigration options and offer practical real-world strategies:

  • Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, to be held April 13 at 12 noon (ET). Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
  • Session 2: EB-5 regional center applications and project pre-approval petitions, to be held July 6 at 3 pm (ET). Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
  • Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 pm (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

The cost is $89 for an individual session or $249 for all three sessions. To register, go to the ABIL Webinars sign-up page at https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, contact Lauren Anderson at lauren@abil.com or visit abil.com.

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12. . Congress Passes ‘CIFAF’ Bill in Dead of Night on April 1

In an apparent effort to avoid debate, the House of Representatives and Senate both passed the “Comprehensive Immigration Reform April Fools” bill, or CIRAF, not to be confused with GIRAFFE (and pronounced “Siraf,” which is often followed by Gesundheit). On April 1, 2011, the bill was passed in a whirlwind late-night session fueled by Hawaiian pizza and Kenyan kabobs. Afterwards, various members of Congress fanned out across the District of Columbia searching for bars to hit, either to celebrate or to brace themselves for the ensuing public reaction, which was expected to be pretty intense.

The new bill basically lets everyone in, then kicks them all out within 30 days. “This bill achieves the right balance between enforcement and benefits,” President Barack Obama said. “There is something for everyone in this legislation and therefore nobody should get mad at me. I am really a very nice guy,” he noted, flashing his trademark smile. The President added that he would sign the bill just as soon as he is able to verify the U.S. citizenship of each member of Congress via an original birth certificate. Certified copies have been deemed unacceptable as proof of citizenship.

Joe the Plumber, the current favorite for the 2012 Republican presidential nomination, was unavailable for comment. Drudgereport.com reported a rumor that he was stuck in detention after a short trip to Arizona, after which he was stopped for being “foreign-looking.”

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13. New Publications and Items of Interest

Data on EB-5 approvals and Regional Center filings. U.S. Citizenship and Immigration Services (UCSIS) released its latest data on EB-5 filings and Regional Centers (RCs) at its March 17, 2011, EB-5 Stakeholders Meeting held at the California Service Center. USCIS figures show a steep increase in the number of RC filings and EB-5 visa approvals in the first quarter of fiscal year 2011. A PowerPoint presentation and other information from the Stakeholders Meeting are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=68da76be729ce210VgnVCM100000082ca60aRCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD.

Executive summary of EB-5 investor quarterly engagement. On March 17, 2011, the U.S. Citizenship and Immigration Services (USCIS) Service Center Operations (SCOPS) Directorate and the Office of Public Engagement (OPE) released an executive summary of their December 16, 2010, EB-5 Investor Quarterly Engagement. In addition to providing various updates on statistics, processing times, and the recently instituted EB-5-related forms, USCIS responded to input received from the public before the engagement.

The executive summary is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4c68d1f2465ae210VgnVCM100000082ca60aRCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD. The PowerPoint presentation and other related information and links are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=858206489ec6a210VgnVCM100000082ca60aRCRD&vgnextchannel=e0b081c52aa38210VgnVCM100000082ca60aRCRD.

Solicitation for grant applications to operate national farmworker jobs training program. The Department of Labor’s Employment and Training Administration announced a grant competition for operating the National Farmworker Jobs Program (NFJP). The fiscal year 2011 appropriations request for this program is $78,410,000, to be allocated among state service delivery areas for operation of NFJP. The notice, which was published on March 17, 2011, is available at http://edocket.access.gpo.gov/2011/pdf/2011-6245.pdf.

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14. 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.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) has published several new blog entries on his Web site. “BALCA on Using a Range of Experience in Recruitment” analyzes the BALCA decision, Matter of CCG Metamedia, Inc. The blog notes that “regardless of previous success utilizing a particular method or type of recruitment, we cannot afford to become comfortable with the ever-changing PERM process and…these BALCA decisions provide invaluable insight into continuing to avoid the pitfalls of PERM.” For more on this topic, see Mr. Mehta’s December 2010 article, “Analysis of Selected Recent BALCA Decisions As Practice Pointers To Avoid PERM Denials,” available at http://www.cyrusmehta.com/News.aspx?SubIdx=ocyrus201012613454. “Naturalization While Working Overseas For An American Firm ” examines the inadequacy of an exception under the law that was designed to avoid the need to maintain continuous residence for purposes of naturalizing if a permanent resident is employed by an American firm overseas, or its subsidiary, that engages in the development of foreign trade and commerce of the U.S. The blog is available at http://cyrusmehta.blogspot.com/2011/03/naturalization-while-working-abroad-for.html.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US) has published several new blog entries. “Immigration ‘Language Is the Skin of the Soul’ ” discusses how recent immigration-related events illustrate the language-induced unveiling of popular passions. The blog is available at http://nationofimmigrators.mt4temp.lexblognetwork.com/general-immigration/immigration-language-is-the-skin-of-the-soul/. “America’s Creaking, Crotchety Immigration System – Not Ready for the Globalized World” discusses immigration reform and enforcement efforts nationwide and among the states, and argues that economic prosperity and job creation must be the prime U.S. immigration policy, with pragmatism and humane treatment closely in tow.. The blog is available at http://www.nationofimmigrators.com/immigration-reform/americas-creaking-crochety-immigration-system—-so-not-ready-for-the-globalized-world/.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) and Mr. Mehta published articles in Legal Briefs on Immigration Reform. Editors Deborah Robinson and Mona Parsa asked 25 of the top legal minds in the U.S. this question: If you were called upon by the President of the United States to recommend a piece of immigration legislation that could pass the legal test of the U.S. Constitution and both houses of Congress, what would it include? This book is their answer. More information on the book is available at http://www.25legalbriefs.com/.

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15. 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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