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

Headlines:

1. ICE To Audit 1,000 Employers Nationwide for I-9 Violations – The new actions bring the FY 2011 I-9 audit total to 2,338, surpassing the FY 2010 record.

2. USCIS Summarizes Stakeholder Engagement on L-1B Interpretation of ‘Specialized Knowledge’ – USCIS released an executive summary on the L-1B nonimmigrant classification with respect to interpretation of the term “specialized knowledge.”

3. House Judiciary Committee Approves Bill To Reauthorize Temporary Nurse Program – The committee approved a bill that would reauthorize for an additional three years the H-1C temporary visa program for nurses in health professional shortage areas.

4. Senate Holds Hearing on DREAM Act of 2011 – The Senate Subcommittee on Immigration, Refugees and Border Security held a hearing on the Development, Relief, and Education for Alien Minors (DREAM) Act of 2011 on June 28, 2011.

5. Democrats Reintroduce Comprehensive Immigration Reform Bill – Among other things, the bill would mandate the use of an employment verification system, establish a federal commission on immigration, and offer an earned path to citizenship for undocumented people already in the United States.

6. Sen. Lamar Smith Introduces Mandatory E-Verify Bill – The bill seems likely to pass the House and has already been endorsed by key business associations.

7. DOS Speaks on J-1 Summer Work Travel Interim Final Rule – The Department spoke about the new regulatory amendments that take effect July 15, 2011.

8. USCIS, Mississippi Implement New E-Verify Tool – USCIS launched a new feature that allows its E-Verify program to validate the authenticity of Mississippi driver’s licenses used by employees as I-9 identity documents.

9. North Carolina Governor Signs E-Verify Bill – The law mandates that counties, cities, and employers with at least 25 employees use E-Verify to verify the work authorization of new hires, excluding certain seasonal temporary employees.

10. ABIL Global: The EU Blue Card and the Dutch Knowledge Migrant Scheme; New Netherlands Legislation – This article compares the European Union Blue Card with the Dutch Knowledge Migrant Scheme, and summarizes several new pieces of legislation.

11. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience for the July 6 webinar includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.

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. ICE To Audit 1,000 Employers Nationwide for I-9 Violations

U.S. Immigration and Customs Enforcement (ICE) reported that it is auditing approximately 1,000 U.S. employers, of a range of sizes and in every state, to ensure compliance with I-9 employment authorization verification procedures. ICE has not specified which companies are affected, but it is expected to be focusing on critical sectors, to include agriculture and food; banking and finance; chemical; commercial facilities; commercial nuclear reactors, materials and waste; dams; defense industrial base; drinking water and water treatment systems; emergency service; energy; government facilities; information technology; national monuments and icons; postal and shipping; public health and health care; telecommunications; and transportation systems.

It was reported that the new actions bring the fiscal year 2011 I-9 audit total to 2,338, surpassing the fiscal year 2010 record of 2,196.

2. USCIS Summarizes Stakeholder Engagement on L-1B Interpretation of ‘Specialized Knowledge’

On June 13, 2011, U.S. Citizenship and Immigration Services (USCIS) launched “Records and Information from DMVs for E-Verify (RIDE),” a new feature that allows the agency’s E-Verify program to validate the authenticity of Mississippi driver’s licenses used by employees as Form I-9 identity documents.

More than 80 percent of employees present driver’s licenses to establish their identities when undergoing the I-9 employment authorization verification process. By enabling E-Verify to compare driver’s license data against state records, USCIS said, RIDE will improve E-Verify’s accuracy and help combat document fraud while observing safeguards to protect employees’ personal data. “RIDE helps combat document fraud by enabling E-Verify to confirm the authenticity of an additional identity document,” USCIS said. For example, previously, if an employee presented a driver’s license to establish his or her identity and a Social Security card to establish his or her authorization to work, E-Verify would only have been able to confirm the validity of the Social Security card. RIDE enables E-Verify employers in Mississippi to confirm the validity of both documents.

The new E-Verify RIDE feature builds on existing technology and infrastructure that the Mississippi Department of Public Safety (MDPS) and other state public safety departments use in conjunction with the American Association of Motor Vehicle Administrators. Mississippi is the first state to partner with USCIS to implement RIDE.

The U.S. House of Representatives Committee on the Judiciary approved a bill (H.R. 1933) on June 23, 2011, to help hospitals in inner-city neighborhoods and rural areas that have difficulty in attracting nurses. Specifically, the bill would reauthorize for an additional three years the H-1C temporary visa program that allows foreign nurses to come to the U.S. to work in health professional shortage areas. The bill was reported favorably to the House floor by voice vote.

The prior H-1C program allowed 500 foreign nurses per year to work in the United States. H.R. 1933 would reduce that number to 300 per year. The bill would benefit about 14 hospitals around the country.

House Judiciary Committee Chairman Lamar Smith (R-Tex.), the bill’s sponsor, praised the Committee vote: “A number of American hospitals have great difficulty attracting nurses. These include hospitals that serve mostly poor patients in inner-city neighborhoods and some hospitals in rural areas. For example, St. Bernard Hospital in Chicago is the only remaining hospital in an area of over 100,000 people and almost all of its patients live in poverty. St. Bernard almost closed its doors in 1992, primarily because of its inability to attract registered nurses. I introduced H.R. 1933 to help St. Bernard and other similar hospitals. The bill reauthorizes the H-1C program for an additional three years. Just as nurses ensure care for the sick, the H-1C program ensures continued care for patients in inner-city and rural communities.”

The Senate Subcommittee on Immigration, Refugees and Border Security held a hearing on the Development, Relief, and Education for Alien Minors (DREAM) Act of 2011 on June 28, 2011. Sen. Dick Durbin (R-Ill.) opened the hearing. Witnesses included Janet Napolitano, Secretary of the Department of Homeland Security; Arne Duncan, Secretary of the Department of Education; Dr. Clifford Stanley, Under Secretary of Defense for Personnel and Readiness; Ola Kaso, a DREAM Act student; Lt. Col. Margaret Stock, and Steven Camarota, Director of Research for the Center for Immigration Studies.

Secretary Napolitano said the Obama administration “strongly supports the DREAM Act.” She noted that in the closing days of the 111th Congress, the DREAM Act passed the House of Representatives with bipartisan support and fell a few votes short in the Senate. She commended Sen. Durbin and the 34 co-sponsors who have signed onto the bill thus far. She said the DREAM Act would ” allow the Department to devote a greater portion of limited DHS resources to removing individuals who actually pose a risk to public safety or security.” She said the DREAM Act would do this “by providing a firm but fair way for individuals brought into our country as children – through no fault of their own – to obtain legal status by pursuing higher education, or by serving in the U.S. Armed Forces for the country where they have grown up and which they consider their home.”

She noted that, as introduced in the Senate, the DREAM Act “establishes a rigorous process for those who entered the United States illegally as children to obtain conditional permanent resident status by proving that they meet several strict requirements.” Those applying for conditional permanent resident status, she said, would also need to submit biometric and biographic data and undergo security and law enforcement background checks and a medical examination. Without the DREAM Act, Secretary Napolitano said, “young people will continue to be caught up in the immigration removal system, siphoning resources away from other, more pressing needs.” She said that it does not make sense from a law enforcement or public safety perspective “to devote limited enforcement resources on young people who pose no threat to public safety, who were brought to this country illegally by no fault of their own and have grown up here, and who want to contribute to our country by serving in the military or going to college.”

Sen. Robert Menendez (D-N.J.) and six other Democrats reintroduced the Comprehensive Immigration Reform Act of 2011 (S. 1258) on June 22, 2011, a bill that would mandate the use of an employment verification system, establish a federal commission on immigration, and offer an earned path to citizenship for undocumented people already in the United States.

The 679-page bill is similar to legislation introduced by Sen. Menendez and other Democrats in September 2010. Senate Majority Leader Harry Reid (D-Nev.), along with Sens. Patrick Leahy (D-Vt.), Dick Durbin (D-Ill.), Charles Schumer (D-N.Y.), and Kirsten Gillibrand (D-N.Y.), co-sponsored the legislation. The bill includes measures to strengthen border security, enhance worksite enforcement of immigration laws, and requirements that the estimated 11 million undocumented people in the U.S. register with the government, pay taxes, learn English, pay a fine, pass a background check, and wait in line for permanent residence.

The bill also includes a mandatory employment verification system, and enforcement measures such as additional resources for the Border Patrol; expanded penalties for passport and document fraud; new requirements for the Department of Homeland Security to track entries and exits at the border; rules governing detention to ensure that U.S. citizens are not unlawfully detained; and new criminal penalties for fraud and misuse of Social Security numbers.

House Judiciary Committee Chairman Lamar Smith (R-Tex.) recently introduced the “Legal Workforce Act” (H.R. 2164), a bill that would require all businesses to verify the legal status of workers using the online E-Verify system. The bill seems likely to pass the House and has already been endorsed by key business associations, including the U.S. Chamber of Commerce, the National Restaurant Association, the National Association of Home Builders, and the National Federation of Independent Business.

Opponents of the bill argue that there are not enough U.S. workers available to fill the estimated 8 million jobs held by undocumented workers, 90 percent of which are non-agricultural. Statements from SEIU, the National Immigration Law Center, and others echoed the idea that an E-Verify mandate without a path to legalization for undocumented workers already in the United States would undermine the U.S. economy.

The text of the bill is available at http://thomas.loc.gov/cgi-bin/query/z?c112:H.R.2164:.

7. DOS Speaks on J-1 Summer Work Travel Interim Final Rule

On June 20, 2011, a Department of State spokesperson answered a question about an interim final rule, effective July 15, 2011, that amends regulations on the J-1 Summer Work Travel (SWT) program. The spokesperson noted that given the size of the program, with approximately 120,000 college and university student participants in 2010, the Department has decided to “enhance safeguards,” including:

A pilot program for six countries (Belarus, Bulgaria, Moldova, Romania, Russia, and Ukraine) aimed at thwarting the potential for abuse of summer work travel participants who come from those countries; and new program-wide regulations designed to strengthen and clarify current program oversight and administration requirements
A special e-mail address and a toll-free telephone number, available 24 hours per day and 7 days per week, to enable students to have ready, direct contact with the Department about program complaints or issues
On June 13, 2011, U.S. Citizenship and Immigration Services (USCIS) launched “Records and Information from DMVs for E-Verify (RIDE),” a new feature that allows the agency’s E-Verify program to validate the authenticity of Mississippi driver’s licenses used by employees as Form I-9 identity documents.More than 80 percent of employees present driver’s licenses to establish their identities when undergoing the I-9 employment authorization verification process. By enabling E-Verify to compare driver’s license data against state records, USCIS said, RIDE will improve E-Verify’s accuracy and help combat document fraud while observing safeguards to protect employees’ personal data. “RIDE helps combat document fraud by enabling E-Verify to confirm the authenticity of an additional identity document,” USCIS said. For example, previously, if an employee presented a driver’s license to establish his or her identity and a Social Security card to establish his or her authorization to work, E-Verify would only have been able to confirm the validity of the Social Security card. RIDE enables E-Verify employers in Mississippi to confirm the validity of both documents.The new E-Verify RIDE feature builds on existing technology and infrastructure that the Mississippi Department of Public Safety (MDPS) and other state public safety departments use in conjunction with the American Association of Motor Vehicle Administrators. Mississippi is the first state to partner with USCIS to implement RIDE.
North Carolina Governor Beverly Purdue signed HB 36 into law on June 23, 2011. The new law mandates that counties, cities, and employers with at least 25 employees use E-Verify to verify the work authorization of new hires. The law does not apply to seasonal temporary employees who are employed for 90 or fewer days during a consecutive 12-month period.
The law specifies that the Commissioner of Labor may subpoena employment records relating to “the recruitment, hiring, employment, or termination policies, practices, or acts of employment” as part of an investigation of a valid complaint.
The text of the ratified bill is available at http://www.ncga.state.nc.us/Sessions/2011/Bills/House/HTML/H36v7.html.

10. ABIL Global: The EU Blue Card and the Dutch Knowledge Migrant Scheme; New Netherlands Legislation

EU Blue Card and Dutch Migrant Scheme

The European Union (EU) Blue Card is a residence and work permit for highly skilled non-EU/EER nationals, so-called third-country nationals. The EU Blue Card does not provide full access to the EU labor market as such, but only to the labor market of the EU Member State that has issued the EU Blue Card.

The implementation date of the European Directive on the EU Blue Card (2009/50/EG) was June 19, 2011. The Netherlands has implemented the EU Blue Card in the Dutch Immigration regulations.

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, and each has advantages, disadvantages, and limits.

A 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, helps 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 explains immigration options and offers 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 on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
Immigration enforcement actions in 2010. The Department of Homeland Security’s Office of Immigration Statistics has published “Immigration Enforcement Actions: 2010.” The short annual report, which presents information on the apprehension, detention, return, and removal of foreign nationals during 2010, notes, among other things, that DHS returned 476,000 foreign nationals to their countries of origin in 2010 without a removal order. Mexican nationals accounted for 83 percent of the 516,992 aliens apprehended in 2010. The next leading countries were Guatemala, El Salvador, and Honduras. Those four countries accounted for 94 percent of all apprehensions. The report is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement-ar-2010.pdf.Stories from Cuba. NAFSA: Association of International Educators has launched a website, “Connecting Our World,” and has posted a collection of stories from Cuba pursuant to the new expansion of U.S. academic travel to Cuba. The interactive site asks readers to share stories from their travels and studies in Cuba. The stories collected so far are available at http://www.connectingourworld.org/?page_id=2088.

13. Member News

Robert Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm?c=US) was quoted in the June 23, 2011, edition of the Texas Tribune. Commenting on the potential unintended effects of state bills and a recent ICE memo on detaining and removing immigration status violators from the U.S., Mr. Loughran noted, “Once you detain someone you have to take action on that file. And very few people have the courage to stand up and do the release. I have specifically seen cases and worked on cases where the government has been unable to articulate what its concern or danger is, and you cannot get a single officer to put a signature on a release.” He said that could lead to non-offenders and even witnesses to crimes being held for weeks or even years, which could also swell jail populations and cost cities and counties millions in detention costs. The article is available at http://www.texastribune.org/texas-legislature/82nd-legislative-session/students-federal-memo-complicate-sanctuary-cities/.

Mr. Loughran has been selected for inclusion in the 2011 edition of Texas’ Best Lawyers. Attorneys listed in this guide are only those attorneys listed in The Best Lawyers in America. Inclusion in The Best Lawyers in America is based entirely on peer review. The attorneys are asked, “If you could not handle a case yourself, to whom would you refer it?” According to his peers, Mr. Loughran is the attorney on whom they would depend for matters of immigration law.

Mr. Loughran has been selected to be a presenter at the Alliance of Business Immigration Lawyers (ABIL) Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals. Mr. Loughran will provide his expertise regarding how to successfully navigate the back end of the EB-5 process for both individual investors and regional centers. The webinar will be held August 16, 2011, at 3 p.m. EST. For more information, contact Lauren Anderson at [email protected] or visit http://abil.com.

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