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

Headlines:

1. USCIS Changes Timeframes for RFEs – Among other things, the maximum response time for an RFE may not exceed 12 weeks (84 days).

2. USCIS Submits Revision of Basic Pilot Verification MOU to OMB for Review – Comments will be accepted until September 12, 2011.

3. DOS Determines Employment Preference Numerical Limit for FY 2011 – The worldwide employment-based preference numerical limit for fiscal year (FY) 2011 is 140,000.

4. DOS Announces Visa Issuance Agreement Between U.S. and Russian Federation – The new agreement concerns the issuance of nonimmigrant business, tourist, private, and humanitarian visas to the Russian Federation, and business and tourist visas to the U.S., as well as short-term official travel visas to both countries.

5. DOL Orders Prince George’s County Public Schools To Pay $4.2 Million in Back Wages – An investigation by the Department of Labor found Maryland’s Prince George’s County Public Schools system in violation of the H-1B program.

6. 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.

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

8. Member News – Member News

9. Government Agency Links – Government Agency Links

Details:

1. USCIS Changes Timeframes for RFEs

U.S. Citizenship and Immigration Services (USCIS) previously gave agency officers the flexibility to determine individual response times for requests for evidence (RFEs) tailored to the circumstances of each case. USCIS released an interim policy memorandum on July 13, 2011, changing the standard timeframes for applicants or petitioners to respond to RFEs because, the agency said, “this delegated flexibility has led to inconsistencies in the RFE process.”

USCIS is amending the standard timeframes listed in Appendix 10-9 of the Adjudicator’s Field Manual (AFM) to include:

A standard timeframe of 30 days for the Application to Extend/Change Nonimmigrant Status (Form I-539); and
A standard timeframe of 84 days for all other form types, regardless of whether the request is for initial or additional evidence, or whether the evidence is available in the United States or is obtained from overseas sources.

The maximum response time for an RFE may not exceed 12 weeks (84 days), the memo states. However, when an RFE is served by mail, USCIS officers should include additional mailing time for the RFE to reach the applicant/petitioner and for the response to reach USCIS. The standard mailing time established by regulation is three days. As a matter of policy, USCIS has determined that the mailing time should be longer when the applicant or petitioner is residing outside the U.S. USCIS amended the AFM accordingly to include appropriate mailing times in addition to standard response times.

The memo does not apply to asylum applications or applications for relief under Section 203 of the Nicaraguan Adjustment and Central American Relief Act.

The memo is available at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Interim%20Guidance%20for%20Comment/change-timeframes-rfe.pdf.

2. USCIS Submits Revision of Basic Pilot Verification MOU to OMB for Review

U.S. Citizenship and Immigration Services (USCIS) submitted for Office of Management and Budget review the memorandum of understanding (MOU) to participate in the Basic Pilot Employment Eligibility Program. USCIS is encouraging comments, which will be accepted until September 12, 2011.

USCIS estimates that 125,015 respondents will complete the MOU, and that 521,134 employers will register to participate in the program.

For more information on the revision and where to send comments, see http://www.gpo.gov/fdsys/pkg/FR-2011-07-13/pdf/2011-17546.pdf.

3. DOS Determines Employment Preference Numerical Limit for FY 2011

The Department of State (DOS) has determined the worldwide employment-based preference numerical limit for fiscal year (FY) 2011: 140,000. The per-country limit is fixed at 7 percent of the employment annual limit. For FY 2011, the per-country limit is 25,620. The dependent area annual limit is 2 percent, or 7,320.

The worldwide family-sponsored preference limit for FY 2011 is 226,000. See the DOS’s Visa Bulletin for August 2011 for details at http://www.travel.state.gov/visa/bulletin/bulletin_5518.html.

4. DOS Announces Visa Issuance Agreement Between U.S. and Russian Federation

On July 13, 2011, U.S. Secretary of State Hillary Rodham Clinton and Russian Foreign Minister Sergey Lavrov announced an agreement on the issuance of nonimmigrant business, tourist, private, and humanitarian visas to the Russian Federation, and on business and tourist visas to the U.S., as well as short-term official travel visas to both countries.

The agreement will facilitate travel between the two countries and, DOS said, “benefits the largest segments of our traveling Americans and Russians – business travelers and tourists, traveling both as individuals and in groups, by granting as a rule, on a reciprocal basis, multiple-entry visas valid for 36 months.” The agreement also reduces the documentation required.

The new visa validity periods “will allow for expanded contacts and promote greater mutual understanding between our societies,” DOS said. This agreement will go into effect after an exchange of diplomatic notes in Moscow.

The DOS announcement is available at http://www.state.gov/r/pa/prs/ps/2011/07/168346.htm.

5. DOL Orders Prince George’s County Public Schools To Pay $4.2 Million in Back Wages

An investigation by the Department of Labor’s (DOL) Wage and Hour Division found Maryland’s Prince George’s County Public Schools (PGCPS) system in violation of the H-1B temporary foreign worker visa program.

DOL investigators found that PGCPS illegally reduced the wages of 1,044 foreign teachers hired under the H-1B program by requiring them to use their own money to pay a $500 anti-fraud fee to the Department of Homeland Security, as well as a $1,000 attorney’s fee and a $3,500 placement fee. DOL held that under federal law, the school district should have paid those fees.

“All employers, including school systems, are required to follow the law. That includes the legal duty to pay every teacher hired the full wages he or she is owed,” said Nancy J. Leppink, acting administrator of the Wage and Hour Division.

Due to the willful nature of some of the violations, PGCPS also was assessed $100,000 in civil money penalties and was debarred for two years from filing new petitions, requests for extensions, or requests for permanent residence for foreign workers under any employment-based visa program. DOL noted that “[v]iolations are willful when an employer knew or acted in reckless disregard [of] whether its actions were impermissible.”

Some H-1B employers may be unaware of which fees they must pay and which fees an H-1B worker may pay. Consult your ABIL attorney for guidance on this issue.

The DOL’s news release is available at http://www.dol.gov/opa/media/press/whd/whd20110357.htm.

6. ABIL Webinar Series: 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.

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.
Session 2: EB-5 regional center applications and project pre-approval petitions, was held July 6 at 3 p.m. (ET). (A recording of the webinar is available for purchase.) 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 p.m. (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before each session, as well as a recording of the webinar. The cost is $89 for an individual session or $249 for all three sessions, live or recorded. For more information, see https://www.abil.com/news_detail.cfm?NEWS_ID=96. To register, go to: https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, contact Lauren Anderson at [email protected] or visit https://abil.com.

7. New Publications and Items of Interest

Analysis of H.R. 2164, the Legal Workforce Act. The National Foundation for American Policy has released a policy brief, “We Should Trust, But Not E-Verify: An Analysis of H.R. 2164,” which argues that “H.R. 2164, the Legal Workforce Act, would make the American workplace less free, ensnare U.S. workers in government agency errors, expand the size and role of government and is likely to be ineffective in reducing the illegal immigration population in the United States.” Among other things, the policy brief notes that the Congressional Budget Office (CBO) estimated that mandating E-Verify nationwide would increase federal spending by approximately $6 billion from 2009 to 2013 and by about $12 billion from 2009 to 2018. The brief states that the CBO estimated the 2008 bill would lead to a decline of $17 billion in tax revenue over 10 years, caused primarily by pushing undocumented workers into the underground economy.

The policy brief is available at http://www.nfap.com/pdf/EVerify_NFAP_Policy_Brief_July2011.pdf.

Boosting the economic contribution of employment-based immigration. The Migration Policy Institute has released “Eight Policies to Boost the Economic Contribution of Employment-Based Immigration” by Demetrios G. Papademetriou and Madeleine Sumption. Drawing on experiences from Asia, Europe, North America, and the Pacific region, the policy memo presents eight strategies developed by immigrant-receiving countries to increase the economic contribution of employment-based immigration. These policies “represent best practices that policymakers can rely on to create effective and efficient economic-stream immigration systems,” the memo states. The policies discussed “focus on selecting immigrants with a range of skill levels, retaining those with the greatest potential to succeed, engaging employers constructively in the immigration process, and facilitating immigrant integration.”

The policy memo is available at http://www.migrationpolicy.org/pubs/competitivenessstrategies-2011.pdf.

8. Member News

H. Ronald Klasko and Stephen Yale-Loehr will speak at the Invest In the USA association meeting in Washington, DC, on September 15, 2011. Mr. Klasko will speak on current EB-5 policy and administrative issues; Mr. Yale-Loehr will speak on legislative strategies to renew the EB-5 regional center program through Congress. For more information, go to http://iiusadc915.eventbrite.com/.

Cyrus Mehta recently published “Right to Appointed Counsel in Removal Proceedings? The Supreme Court May Have Opened the Door in Turner v. Rogers,” which argues that Turner v. Rogers can be used favorably by immigration advocates seeking to establish a right to appointed counsel in immigration removal proceedings. It is available at http://www.cyrusmehta.com/News.aspx.

Mr. Mehta also recently released a new blog entry, “Immigration Lessons from the Fall and Rise of Strauss-Kahn, Part II,” available at http://cyrusmehta.blogspot.com/2011/07/immigration-lessons-from-fall-and-rise.html.

Angelo Paparelli has posted a new blog entry, “Race to the EAD: Revitalizing Depressed American Cities Through State Immigration Initiatives.” The blog suggests an initiative to allow states to submit economic revitalization proposals under which federally approved projects would allow promising and worthy nonimmigrant and conditional immigrant investors and entrepreneurs, as well as state-recommended recipients of deferred action, to obtain a renewable EAD in reasonable time period increments. The blog is available at .

Mr. Paparelli also recently co-authored “Global Mobility Management – A Primer for Chief Legal Officers and HR Executives,” available at http://www.whoswholegal.com/news/features/article/28998/global-mobility-management-primer-chief-legal-officers-hr-executives/.

Bernard Wolfsdorf was named corporate immigration lawyer of the year for the second year in a row by Who’s Who Legal. For more information, see http://www.whoswholegal.com/news/features/article/29126/an-interview-bernie-wolfsdorf-corporate-immigration-award-winner-2011/.

The new Chambers Global 2011 lists several members of the Alliance of Business Immigration Lawyers (ABIL) in its North America section, including:

Go to http://www.chambersandpartners.com/Global to search for a particular lawyer. Chambers USA 2011 is now also online; go to http://www.chambersandpartners.com/USA to search for a particular lawyer.

9. Government Agency Links

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

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

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

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

Visa application wait times for any post: http://travel.state.gov/visa/temp/wait/wait_4638.html