News from the Alliance of Business Immigration Lawyers Vol. 7, No. 8B • August 15, 2011
Headlines:
1. DHS, USCIS Announce Initiative To Promote Startups and Spur Job Creation – Agencies announce efforts to attract foreign entrepreneurial talent to the U.S.
2. ICE Declares ‘Secure Communities’ Mandatory, Not Optional – ICE announced that a memorandum of agreement between ICE and a state is not required to operate Secure Communities in that state.
3. ICE Announces Intention To Withdraw University of Northern Virginia’s SEVP Certification and SEVIS Access for Its Foreign Students – UNVA students must immediately depart the U.S. if they are unable to continue to attend classes and maintain their active status or if they are unable or do not wish to transfer to another SEVP-certified institution.
4. ABIL Global: Training for Professionals in Brazilian Companies: Comparing Normative Resolutions 87 and 88 – Normative Resolutions 87 and 88 are both focused on training people in Brazilian companies but differ in certain aspects.
5. New Publications and Items of Interest – New Publications and Items of Interest
6. Member News – Member News
7. Government Agency Links – Government Agency Links
Details:
1. DHS, USCIS Announce Initiative To Promote Startups and Spur Job Creation
On August 2, 2011, Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas announced a series of “policy, operational, and outreach efforts” to fuel the U.S. economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or those who can create jobs, form startup companies, and invest capital in areas of high unemployment.
The DHS/USCIS announcement noted the following:
- USCIS will conduct internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from a new series of stakeholder engagements.
- The employment-based second preference (EB-2 visa) classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements may be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the U.S. USCIS noted that entrepreneurs may obtain an EB-2 immigrant visa if they satisfy the existing requirements, and also may qualify for a national interest waiver under that visa category if they can demonstrate that their business endeavors will be in the interest of the U.S.
- In response to previous stakeholder feedback, USCIS has updated its existing FAQs to clarify that an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa.
- USCIS is “transforming” the EB-5 immigrant investor intake and review process. In May, USCIS proposed extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on this proposal, USCIS is developing a “phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days” of August 2, 2011.
- As of June 30, 2011, USCIS estimated that the EB-5 program has resulted in more than $1.5 billion in capital investments and created at least 34,000 U.S. jobs.
- Premium processing service is being expanded for immigrant petitions for multinational executives and managers.
Finally, USCIS is launching a new series of engagement meetings for entrepreneurs and startup companies. These meetings will focus on soliciting input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses, and startup companies through its employment-based policies and regulations. USCIS also seeks feedback on examples of the business lifecycle for entrepreneurial ventures, small businesses, and startups, to include initial funding available, typical organizational structure, ownership structure, and payment of salaries; and examples of typical business plans for entrepreneurs and startups.
The DHS/USCIS announcement is at http://www.dhs.gov/ynews/releases/20110802-napolitano-startup-job-creation-initiatives.shtm.
A USCIS FAQ on entrepreneurs and the EB-2 category is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=93da6b814ba81310VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD.
For more information on USCIS’s public meetings, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=ea015fc544007210VgnVCM100000082ca60aRCRD&vgnextchannel=ea015fc544007210VgnVCM100000082ca60aRCRD.
2. ICE Declares ‘Secure Communities’ Mandatory, Not Optional
U.S. Immigration and Customs Enforcement (ICE) Director John Morton sent a letter on August 5, 2011, to governors terminating all existing Secure Communities memoranda of agreement “to clarify an issue that has been the subject of substantial confusion,” which is that “[a memorandum of agreement (MOA)] between ICE and a state is not required to operate” Secure Communities in that state. In recent months, several state and local jurisdictions had signed MOAs before participating, and some states subsequently attempted to rescind their MOAs.
Noting that participation in the program is not optional, ICE said that “[o]nce a state or local law enforcement agency voluntarily submits fingerprint data to the federal government, no agreement with the state is legally necessary for one part of the federal government to share it with another part.” ICE said it plans to continue expanding the program and hopes to achieve nationwide activation by 2013.
Secure Communities uses an already existing federal information-sharing partnership between ICE and the Federal Bureau of Investigation (FBI). For decades, local jurisdictions have shared the fingerprints of individuals who are booked into jails with the FBI to see if they have a criminal record. Under Secure Communities, the FBI automatically sends the fingerprints to ICE to check against its immigration databases. If these checks reveal that an individual is unlawfully present in the U.S. or otherwise removable due to a criminal conviction, ICE takes enforcement action, prioritizing the removal of individuals who present the most significant threats to public safety as determined by the severity of their crime, their criminal history, and other factors, as well as those who have repeatedly violated immigration laws.
ICE noted that “Secure Communities imposes no new or additional requirements on state and local law enforcement,” and that “the federal government, not the state or local law enforcement agency, determines what immigration enforcement action, if any, is appropriate.”
An example of the letter sent to governors is available at http://uncoverthetruth.org/wp-content/uploads/SGN-RSP-for-Jack-Markell.pdf. For more information on Secure Communities, see http://www.ice.gov/secure_communities/.
3. ICE Announces Intention To Withdraw University of Northern Virginia’s SEVP Certification and SEVIS Access for Its Foreign Students
On July 28, 2011, following a review of the University of Northern Virginia’s (UNVA) certification, a Student and Exchange Visitor Program (SEVP) representative served school officials at UNVA with a notice of the agency’s intent to withdraw the school’s SEVP-certification and Student and Exchange Visitor Information System (SEVIS) access. Foreign students at UNVA must immediately depart the U.S. if they are unable to continue to attend classes and maintain their active status under the regulations or if they are unable or do not wish to seek transfer to another SEVP-certified institution.
School officials at UNVA no longer have access to SEVIS and will not be able to manage nonimmigrant students’ records in SEVIS. U.S. Immigration and Customs Enforcement (ICE) said that UNVA nonimmigrant students should contact SEVP, as they would their designated school official, to report any changes, so their SEVIS record and Form I-20 (Certificate of Eligibility for Nonimmigrant (F-1) Student Status) can be updated accordingly.
ICE noted that SEVP-certified schools “are subject to a review of their certification at any time based on regulations.” According to news reports, ICE agents came to the UNVA campus on July 28 and confiscated records and computers. Most of UNVA’s students are foreign and the school is reportedly accredited only by the American University Accreditation Council, an entity that the U.S. Department of Education does not recognize. ICE did not explain why it raided the school or its decision to withdraw foreign student certification.
Instructions for University of Northern Virginia foreign students are available at http://www.ice.gov/sevis/unva/.
4. ABIL Global: Training for Professionals in Brazilian Companies: Comparing Normative Resolutions 87 and 88
Normative Resolution Nos. 87 and 88 are both focused on training people in Brazilian companies. However, even though they have similarities, there are still details that distinguish the procedures and applications for work permits under these resolutions.
Normative Resolution No. 87 allows a visa to a foreign national, linked to a company abroad, for job training by the branch, subsidiary, or Brazilian headquarters belonging to the same economic group. In other words, this work permit, valid for one year (non-extendable), provides for a professional who already belongs to the same economic group of companies to come to Brazil for professional improvement, exchanging information with the Brazilian team and bringing new techniques and knowledge to the company abroad. The foreigner may not necessarily be paid in Brazil and may receive his or her salary from the company abroad.
On the other hand, Normative Resolution No. 88 provides for a visa to a foreigner who comes to Brazil for an internship for one year (extendable for the same period). This means that the foreigner will participate in a supervised educational exchange, developed in the workplace and aimed at preparation for productive work for students who are attending regular classes in institutions of higher education. Also, such foreign nationals may receive financial grants to support their stay in Brazil as well as other benefits under Brazilian internship law. The applicants for this type of permit should go to the Brazilian consular office in their country of origin to apply for this type of visa. They should bring a signed agreement between the assignee, the entity granting the internship, and the Brazilian educational institution.
Thus, both permits are geared toward training professionals, whether they have already graduated (Normative Resolution No. 87) or await graduation (Normative Resolution No. 88). The conditions under which the foreigner national may come to Brazil are what differentiate one from another. In both cases, however, the experience abroad provides an educational exchange and a convenient alternative for those seeking to improve their language skills and grow professionally and personally.
5. New Publications and Items of Interest
E-Verify Webinars. U.S. Citizenship and Immigration Services is offering a series of free webinars on the employment verification process and E-Verify. Several are scheduled for late August. See http://www.uscis.gov/USCIS/Verification/E-Verify/E-Verify_Native_Documents/E-Verify%20Webinar%20Flyer.pdf for details.
USCIS Ombudsman on change-of-address procedures. USCIS’s Ombudsman recently noted that USCIS, the Department of State, the Executive Office for Immigration Review, and the Department of Labor have separate procedures, filing locations, and timeframes for submitting an address change. A change of address should be reported for each application type, petition, case, and family member with each government agency from which an immigration benefit is being sought. Applicants should use the most permanent address available. The Ombudsman’s Office recommends keeping copies of all correspondence sent to USCIS, using certified, registered, or return receipt mail to ensure documentation of the mailing. See http://www.dhs.gov/files/publications/cisomb-federal-change-of-address-procedures.shtm. The Ombudsman posted filing tips on changes-of-address at http://www.dhs.gov/files/publications/gc_1305649739320.shtm.
Immigrant innovators. Harvard Business School has published “Immigrant Innovators: Job Stealers or Job Creators?” The article looks at recent research on whether the H-1B program helps or hurts U.S. workers. The article found that the H-1B program does not hurt U.S. workers and helps U.S. innovation. The article is available, with reader comments, at http://hbswk.hbs.edu/item/6765.html.
6. Member News
Cyrus Mehta has posted several new blog entries. “Prevailing Wage Determinations Suspended Until Further Notice: How Do I File a PERM Labor Certification?” discusses steps employers may take to cope with the current delays in processing and to ensure that they are able to timely file their PERM applications and utilize recruitment before it expires or to protect the foreign national’s ability to extend H-1B status in the U.S. “Do We Have a Start-Up Visa Even When Congress Has Not Lifted A Finger?” discusses the August 2, 2011, announcement by DHS/USCIS about efforts to attract foreign entrepreneurial talent, is available at http://cyrusmehta.blogspot.com/2011/08/do-we-have-start-up-visa-for.html.
Mr. Mehta and Charles Kuck were quoted recently in the Washington Post in an article on the August 2, 2011, announcement by DHS/USCIS about efforts to attract foreign entrepreneurial talent. Mr. Mehta said, “Not only did the USCIS director have to probably override some of his own staffers and skeptics, but Mayorkas also did this administratively when Congress is in a stalemate.” Mr. Kuck expressed concerns about “the anti-business attitude of the vast majority of the adjudicators, who would rather find reasons to deny legitimate cases and chase off investment and jobs than approve them.” He noted, “We’ll know how serious the government is about supporting entrepreneurs when new applications are filed.” The article is available at http://www.washingtonpost.com/national/on-immigration-a-step-in-the-right-direction/2011/08/03/gIQA2bGgsI_story.html.
Angelo Paparelli has posted several new blog entries. “End the Tyranny of Immigration Insubordination,” which notes among other things that “[l]ofty statements about supporting small business and spurring immigration-juiced job creation are only vaporous platitudes without parallel actions to make sure the troops on the ground follow orders,” is available at http://www.nationofimmigrators.com/immigration-reform/end-the-tyranny-of-immigration-insubordination/. “Immigration Thought Leadership – Needed Now More Than Ever” is available at http://www.nationofimmigrators.com/immigration-reform/immigration-thought-leadership—needed-now-more-than-ever/.
Stephen Yale-Loehr was quoted in the August 2, 2011, edition of the Wall Street Journal. Commenting on USCIS’ efforts to attract foreign entrepreneurial talent, Mr. Yale-Loehr said, “The Obama administration is getting the immigration system engaged in creating jobs. They are trying to facilitate the ability of entrepreneurs to get temporary work visas and green cards when the economy is in the doldrums.”
Mr. Yale-Loehr also was quoted in Bloomberg Businessweek. In comments on the EB-5 program, he said, “This is a unique way for immigration to enhance the U.S. economy … at no expense to the U.S. taxpayer.”
7. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin