GERMANY: Institutes New Requirements for Electronic Travel Permit

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Since September 1, 2011, applicants for a German electronic residence permit (elektronischer Aufenthaltstitel or eTA) must attend an in-person meeting at the foreigner’s office (together with any family members). Fingerprints and biometric photographs will be taken. The conventional residence permit (adhesive label), the residence card and permanent residence card, and the replacement ID in paper form are being replaced by the electronic residence permit, which will be granted in a credit card-style format.

The electronic residence permit is equipped with a contact-free chip inside the card on which biometric features (photograph and two fingerprints), ancillary conditions (special requirements), and personal data are saved. In addition, the chip is capable of being used as an electronic identity document and qualified electronic signature. The photograph is saved on the body of the card and on the chip. Two fingerprints will also be saved on the chip for all residents of non-member states age 6 and up. For that reason, it is necessary to appear in person for the application.

Only official entities (such as the police of aliens authorities) are authorized to access the photograph and fingerprints. Ancillary conditions are saved on the chip and on a unique supplementary sheet that comes with the electronic residence permit.

Authorized service providers such as banks and official authorities may offer electronic services in which the holder identifies himself or herself electronically using the electronic residence permit. This simplifies the process of such activities as logging into Internet portals, filling out forms, and verifying one’s age on the Internet or at machines. Only providers who possess state authorization will receive access to the holder’s data. In addition, the holder must confirm the transfer of his or her personal data with a six-digit PIN number. The service providers are not able to read the biometric features when using the online identification function.

The electronic residence permit can also save a certificate with a qualified electronic signature. This provides electronic residence permit holders with the option of signing legally effective digital documents if desired.

The permits are not produced by the foreigner’s offices and must be picked up. However, there is no need for the applicant to appear in person and it is possible to grant a power of attorney to allow another person to pick up the permit.

Finally, any permit that was granted before September 1, 2011, will remain valid until no later than April 30, 2021.

News from the Alliance of Business Immigration Lawyers Vol. 7, No. 10B • October 15, 2011

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Headlines:

1. California ‘Dream Act’ Becomes Law – California’s Governor Jerry Brown has signed into law the second portion of the California “Dream Act,” AB 131, which allows undocumented students to qualify for state-funded scholarships and financial aid for state universities after other legal resident and U.S. citizen students have applied.

2. Federal Court Halts Parts of Alabama Immigration Law – The U.S. Court of Appeals for the 11th Circuit issued an injunction pending appeal blocking certain provisions of Alabama’s new immigration law.

3. USCIS Seeks Comments on Proposed EB-5 Immigrant Investor Rule – The processes outlined in the proposed rule would provide an additional two-year period for certain immigrant investors to meet the EB-5 investment and job-creation requirements.

4. USCIS Suddenly Redirects I-797 ‘Notice of Action’ Receipts, Approvals To Petitioners – Effective September 12, 2011, the agency began sending original Form I-797, Notice of Action, receipt and approval notices directly to applicants and petitioners.

5. Customs and Border Protection Discontinues H-2A/2B Exit Program Pilot – U.S. Customs and Border Protection has discontinued the H-2A and H-2B Temporary Worker Visa Exit Program Pilot, effective September 29, 2011.

6. OCAHO Orders Drywall Company To Pay $173,250 in Penalties – The company was ordered to pay $770 per violation for failure to ensure that employees completed or signed I-9 forms, among other things.

7. Justice Dept. Sues California Healthcare Provider for Discrimination – DOJ alleged that the company engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on naturalized U.S. citizens and non-U.S. citizens to work in the U.S.

8. November EB-2 Cut-Off Dates for China and India Most Favorable Since 2007 – The November EB-2 cut-off date for China and India is November 1, 2007.

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

10. Member News – Member News

11. Government Agency Links – Government Agency Links

Details:

1. California ‘Dream Act’ Becomes Law

California’s Governor Jerry Brown has signed into law the second portion of the California “Dream Act,” AB 131, which allows undocumented students to qualify for state-funded scholarships and financial aid for state universities after other legal resident and U.S. citizen students have applied. Gov. Brown said it would enable top students to have “a chance to improve their lives and the lives of all of us.” He signed the first portion, AB 130, in July, which allows such students to apply for private scholarships and loans. Currently, undocumented California high school graduates can apply for in-state tuition rates, as can those in 12 other states, including New York, Texas, and Washington.

Assemblyman Gil Cedillo (D-Los Angeles) said the legislation will increase California’s competitiveness in the global economy and that California “is prepared to lead the country with a positive and productive vision for how we approach challenging issues related to immigration.” Los Angeles Mayor Antonio Villaraigosa said the new law “invests in the dreams of talented undocumented students and in the economic future of our state.”

Not everyone in California is on board with the new law, however. Assemblyman Tim Donnelly (R-Hesperia), wants to put an initiative on the ballot to overturn it, calling the new law “absolutely, fundamentally wrong and unfair and…an insult to people who have worked and played by the rules, including those who have come to this country legally.” Stay tuned.

The text of AB 131 (as enrolled) is available at http://e-lobbyist.com/gaits/text/351864.

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2. Federal Court Halts Parts of Alabama Immigration Law

The U.S. Court of Appeals for the 11th Circuit issued an injunction pending appeal on October 14, 2011, blocking certain provisions of Alabama’s new immigration law, HB 56. The provisions blocked included requiring the immigration status of students to be checked in public schools and making failure to “complete or carry an alien registration card” a misdemeanor for immigrants. The court allowed Alabama to enforce other controversial provisions, such as requiring that police attempt to determine the immigration status of people stopped who they suspect are unauthorized; barring state courts from enforcing contracts with undocumented individuals if the hiring party knew that the person was in the U.S. unlawfully; and making it a felony for undocumented people to enter into business transactions in Alabama, including applying for a driver’s license or business license.

The Department of Justice had filed an appeal with the 11th Circuit because of potential negative consequences of the new state law both domestically and internationally, including conflicts with federal responsibilities, discrimination against those legally in the U.S., driving undocumented persons underground or to other states, and affecting diplomatic relations. Advocacy groups, including the American Civil Liberties Union, had filed a separate motion against Alabama’s new law.

The law is already having an impact in Alabama. For example, reportedly a quarter of commercial building workers have left the state, several thousand students have stopped going to school, and church attendance has dropped. Anecdotal evidence is piling up. The Alabama-based Southern Poverty Law Center, which set up a hotline, received about 2,000 calls so far from people with problems such as being afraid to drive their sick family members to the doctor, being unable to set up water service because water companies were requiring them to prove their legal status, or whose children were being bullied at school. The Department of Justice has also set up a hotline for complaints about the Alabama law, telephone: 1-855-353-1010; e-mail: Hb56@usdoj.gov.

Tomato farmer Jamie Boatwright reported that he has a large crop of tomatoes ripe and ready for picking, but most of his workers have left Alabama. Similarly, the owners of Smith & Smith Farms were struggling with three trucks of workers for harvesting instead of 12. Both farms reported that U.S. workers were mostly either not interested or started working but then quit after a few hours. Meanwhile, contractors are taking longer to rebuild after the spring tornadoes that devastated the Tuscaloosa area. “We’re seeing smaller crews and seeing work take longer to accomplish,” said Jimmy Latham, president of Alabama Associated General Contractors and a Tuscaloosa contractor.

Alabama state Senator Scott Beason, who sponsored the legislation, said he is receiving similar complaints from local businesses experiencing difficulties in finding workers and keeping their businesses going. He asserted that there are sufficient numbers of Americans willing to do the jobs abandoned by undocumented workers, and that the adjustment to the new law will take time. Mr. Boatwright begs to differ, noting that he hasn’t been able to attract or retain American workers to his tomato farm and that if he were to raise his wages in an attempt to do so, he would also have to hike the price of his tomatoes and would lose business to neighboring states.

The text of the Alabama law is available at http://alisondb.legislature.state.al.us/acas/searchableinstruments/2011rs/bills/hb56.htm. The latest opinion from the 11th Circuit is at http://www.ca11.uscourts.gov/unpub/ops/201114532ord.pdf. The most recent previous court action on the law, enjoining certain provisions but upholding others, is available at http://irli.org/system/files/US%20v%20Alabama%2011-2746%20PInj%20Order_9-28-11.pdf.

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3. USCIS Seeks Comments on Proposed EB-5 Immigrant Investor Rule

U.S. Citizenship and Immigration Services (USCIS) seeks public comments on a proposed rule published on September 28, 2011, that would enable the agency to process certain applications approved between 1995 and 1998 by immigrant investors under the fifth preference employment-based (EB-5) immigrant visa classification.

The proposed rule would implement provisions of the 21st Century Department of Justice Appropriations Authorization Act that apply to a group of immigrant investors who had a Form I-526, Immigrant Petition by Alien Entrepreneur, approved between January 1, 1995, and August 31, 1998. Specifically, the rule would enable USCIS to process cases for approximately 580 principal immigrant investors and their dependents whose I-526 petitions were approved during that period and who, before November 2, 2002, sought to:

  • Register for permanent residence or adjust their status (using Form I-485); or
  • Remove conditions on permanent residence obtained as an entrepreneur (using Form I-829).

The processes outlined in the proposed rule would provide an additional two-year period for most of these immigrant investors to meet the EB-5 investment and job-creation requirements. This rule would not impact any other applications or petitions filed under the EB-5 program.

Comments will be accepted until November 28, 2011, and should be submitted via one of the methods listed in the proposed rule, which is available at http://www.gpo.gov/fdsys/pkg/FR-2011-09-28/pdf/2011-24619.pdf. USCIS corrected the docket number for the proposed rule on October 4, 2011; see http://www.gpo.gov/fdsys/pkg/FR-2011-10-04/pdf/2011-25463.pdf.

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4. USCIS Suddenly Redirects I-797 ‘Notice of Action’ Receipts, Approvals To Petitioners

On September 30, 2011, U.S. Citizenship and Immigration Services (USCIS) posted a notice on its website stating that, effective September 12, 2011, the agency began sending original Form I-797, Notice of Action, receipt and approval notices directly to applicants and petitioners. USCIS said that courtesy copies of the notices are being sent to attorneys or accredited representatives, if a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, is on file. Previously, the original notice had been sent to the attorney or accredited representative’s address listed on the Form G-28, while a copy was sent to the address provided by the applicant or petitioner in the applicable application or petition form.

USCIS said it implemented this notification change to ensure that documents (such as I-94 Arrival-Departure Records) are mailed directly to the address specified by the applicant or petitioner. USCIS said it “apologizes for any inconvenience caused by not conducting commensurate outreach and providing time for affected stakeholders to adjust their practices.”

USCIS noted that on November 28, 2011, the final rule for Immigration Benefits Business Transformation, Increment I, will take effect. Under the amendments made by this rule, documents produced as the result of an approved application or petition will be mailed directly to the address provided by the party seeking the benefit on the applicable application or petition and not that specified by the attorney or accredited representative on a G-28. “Our objective is to make sure that original receipts, decisions, and documents produced as a result of approved applications or petitions are sent to the address specified by the party making the request,” USCIS said.

In an effort to combat possible scams, USCIS said it generally discourages the practice of entering another person’s address for mailing purposes. Nonetheless, Form I-129, Petition for a Nonimmigrant Worker, petitioners who would like an attorney or representative of record to resume receiving original I-797 notices may use an attorney’s address as the mailing address on the petition, USCIS said.

USCIS warned that using an address other than the petitioner’s address as the mailing address may cause processing delays related to the Validation Instrument for Business Enterprises (VIBE), however, because VIBE automatically uses the address provided on the petition to validate the petitioner’s current location. If petitioners use an attorney’s address as the mailing address on the I-129 petition, USCIS said a cover letter should be included with the filing that clearly indicates the current address of the petitioner. “This information will be used to assist the Immigration Services Officer (ISO) in completing a manual check in VIBE using the petitioner’s address,” USCIS said. “In addition, if an attorney’s address is used as the petitioner’s mailing address on the form, the petitioner will not receive any I-797 notices.”

For petitions filed through Premium Processing, USCIS said the applicant or petitioner may provide an alternate address for mailing of the original approval notice and the I-94 if a pre-paid, self-addressed mailer is provided with the requested mailing address.

Many people have complained about the new procedure. The potential harm that can result from a misrouted, mishandled, or lost document can be serious. For example, when an I-797 notice is sent to a large employer, the document can be misrouted within the organization, resulting in delays in reaching the foreign national. In a worst-case scenario, the document can be lost. In addition, some attorneys have reported that requests for additional evidence are going directly to petitioners and applicants, not to attorneys of record. The change in the processing of notices and decisions undermines the right of a party to the effective assistance of counsel and impedes the ability of attorneys to zealously represent their clients.

The USCIS held a teleconference on October 12, 2011, to hear stakeholders’ concerns about the new I-797 procedures, but it is unclear whether the agency will make any changes.

The USCIS notice about the I-797 processing change is at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=10db489ad93f2310VgnVCM100000082ca60aRCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD.

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5. Customs and Border Protection Discontinues H-2A/2B Exit Program Pilot

U.S. Customs and Border Protection has discontinued the H-2A and H-2B Temporary Worker Visa Exit Program Pilot, effective September 29, 2011. The pilot began on December 8, 2009. It required temporary workers in H-2A or H-2B nonimmigrant classifications who enter the United States at the port of San Luis, Arizona, or the port of Douglas, Arizona, to depart (at the time of their final departure) from these respective ports and to submit certain biographical and biometric information at one of the kiosks established for that purpose.

The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-09-29/pdf/2011-24716.pdf.

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6. OCAHO Orders Drywall Company To Pay $173,250 in Penalties

The Executive Office for Immigration Review’s Office of the Chief Administrative Hearing Officer (OCAHO) has ordered Ketchikan Drywall Services, Inc., of the Puget Sound area of Washington, to pay penalties for various I-9 violations. Ketchikan was ordered to pay $770 per violation, for a total of $173,250, for violations such as failure to ensure that employees completed or signed I-9 forms.

Among other things, the decision noted that failure to complete an I-9 form is not a mere technical or procedural failure but “is substantive in nature and defeats the purpose of the law.” Such substantive violations include, among other things, failing to collect an employee signature; listing the wrong documents to establish identity or employment eligibility; failing to complete the I-9 within three days of hire; and failing to fully complete the form, including the employee attestation that he or she is authorized for employment in the U.S., and regardless of what other documents may have been copied or retained. The decision noted that “[c]opying the documents may well serve to insulate an employer from errors in transcribing the information, but nothing . . . purports to excuse an employer who fails to transcribe any information at all.” The decision noted that specific instances of omission when a copy of a document is retained with the form will be considered on a case-by-case basis, but “there is no general rule that omissions are cured by copying documents.”

The decision, which includes additional details about Ketchikan’s various violations, is available at http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume10/1139.pdf.

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7. Justice Dept. Sues California Healthcare Provider for Discrimination

The Department of Justice (DOJ) filed a lawsuit on September 30, 2011, against Generations Healthcare, a provider with skilled nursing facilities throughout California, alleging that it engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on naturalized U.S. citizens and non-U.S. citizens to work in the U.S. The Department noted that employers are prohibited by law from placing additional burdens on work-authorized employees during the process of hiring or when verifying their employment eligibility based on their citizenship status or national origin.

The DOJ’s investigation found that the company demanded that a work-authorized applicant produce a permanent resident card, also known as a “green card.” The applicant did not have a green card and instead presented an employment authorization document. The company rejected her valid documentation because it had a future expiration date and told her that it could not hire her to work at its St. Francis Pavilion facility unless she presented a green card. As a result, the applicant was unable to obtain employment with the company.

The department’s investigation also revealed that Generations Healthcare required all newly hired non-U.S. citizens and naturalized U.S. citizens at its St. Francis Pavilion facility to present specific and extra work authorization documents beyond those required by federal law to prove their status, a burden that was not placed on native-born U.S. citizens.

“Employers are not allowed to impose more burdensome employment eligibility verification procedures on certain workers based on their citizenship status,” noted Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.

The DOJ’s media release announcing the lawsuit is available at http://www.justice.gov/opa/pr/2011/September/11-crt-1301.html.

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8. November EB-2 Cut-Off Dates for China and India Most Favorable Since 2007

The Department of State’s Visa Bulletin for November 2011 includes the following:

The November employment-based second preference cut-off date for applicants from China and India is the most favorable since August 2007. This advancement is expected to generate significant levels of demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices. While significant future cut-off date movements are anticipated, they may not be made on a monthly basis. Readers should not expect such movements to be the norm throughout the fiscal year, and an eventual retrogression of the cut-off at some point during the year is a distinct possibility.

The November EB-2 cut-off date for China and India is November 1, 2007.

The November Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5572.html.

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9. New Publications and Items of Interest

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories will be released soon. For more information or to pre-order, visit https://www.abil.com/green_card.cfm.

Foreign labor certification annual report. The Department of Labor’s Office of Foreign Labor Certification has released its annual report for the period October 1, 2009 – September 30, 2010. The report notes, among other things, that In the last three quarters of fiscal year 2010, computer-related occupations ranked among the most commonly requested occupations on prevailing wage determinations (PWDs) issued. Computer Software Engineer, Computer Systems Analyst, Computer and Information Systems Manager, and Computer Programmer occupations constituted over 25 percent of the total PWDs issued. Of these occupations, Computer Software Engineers, Applications, was the most frequently requested occupation, representing 13 percent of all PWDs issued. The remaining most frequently requested occupations each represented 2 percent or less of the total PWDs issued.

The report is available at http://www.foreignlaborcert.doleta.gov/pdf/OFLC_2010_Master_for_WebSite_StateFix.pdf.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration.

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10. Member News

Laura Danielson was quoted in the Pioneer Press on October 1, 2011. In an article about Somali singer Aar Maanta’s show being canceled because of a visa delay, Ms. Danielson said, “My understanding is that [the delay] was for administrative processing, which likely means a background name check. He is the only one in the group with a Muslim name, which is more likely to trigger a hit in the government database.”

Mark Ivener gave a presentation, “M&A Deals Can Affect Key Workers’ Visa Status,” at the Professionals In Human Resources Association (PIHRA) Annual Conference on August 30, 2011, in Anaheim, California.

Cyrus Mehta has published several new blog entries. “Prosecutorial Discretion and the ‘Criminal Alien’ ” is available at http://cyrusmehta.blogspot.com/2011/10/prosecutorial-discretion-and-criminal.html. “Some Preliminary Reactions to the District Court Decision Refusing To Enjoin Portions of Alabama’s Immigration Law” is available at http://cyrusmehta.blogspot.com/2011/10/some-preliminary-reactions-to-district.html.

Mr. Mehta spoke on a panel for Brooklyn Law School faculty on September 21. The topic was “Teaching Ethics Across the Curriculum.”

Alliance of Business Immigration Lawyers members participated in the 5th Biennial Global Immigration Conference of the International Bar Association in London, England, on September 23-24, 2011, including Kehrela Hodkinson and Mr. Mehta. The conference program is available at http://www.int-bar.org/conferences/conf383/binary/London%20Global%20Immigration%202011%20programme.pdf.

Angelo Paparelli has published a new blog entry. “Suffer the Children: Immigration Heartlessness and Hypocrisy” is available at http://www.nationofimmigrators.com/.

H. Ronald Klasko was named Philadelphia’s Immigration Law Lawyer of the Year by Best Lawyers 2012.

Bernard Wolfsdorf was named Los Angeles Immigration Law Lawyer of the Year by Best Lawyers 2012.

For more information on Best Lawyers 2012, see http://www.bestlawyers.com/.

Stephen Yale-Loehr moderated “DREAM Act: A Pipe Dream or Eventual Reality?” on October 3, 2011, at Cornell University.

Mr. Yale-Loehr was quoted in International Business Times on September 30, 2011, in an article about the Alabama immigration law federal court decision. He said, “Because of the proliferation of state immigration laws, we need resolution from either the Supreme Court or Congress. Right now, for example, it is very hard for national employers to know what they can or cannot do in various states.” The article is available at http://www.ibtimes.com/articles/222715/20110930/alabama-immigration-law-immigration-law-ruling-immigration-supreme-court-georgia-immigration-arizona.htm?cid=2.

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11. 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

Visa application wait times for any post

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News from the Alliance of Business Immigration Lawyers Vol. 7, No. 10A • October 01, 2011

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Headlines:

1. House Judiciary Committee Approves E-Verify Legislation – A date for consideration on the House floor has not yet been set.

2. State Dept. Estimates Employment-Based Visa Availability – The October Visa Bulletin includes estimated visa availability over the coming months.

3. House Holds Hearing on Immigrant Investor Program and Job Creation – The regional center program is estimated to have created or saved over 65,000 jobs in the U.S. and led to the investment of over $3 billion in the U.S. economy.

4. Diversity Visa 2013 Registration Begins – The online registration period for DV-2013 begins on Tuesday, October 4, 2011, and ends on Saturday, November 5, 2011.

5. Labor Dept. Postpones Revised H-2B Wage Calculations – The new effective date will be November 30, 2011.

6. SSA Inspector General Finds Anomalies in H-1B Workers’ Use of Social Security Numbers – The OIG released a report on H-1B workers’ use of SSNs that could result in more close monitoring of status violations by H-1B workers and potential liability for H-1B employers.

7. State Dept. To Conduct On-Site Reviews of Summer Work Travel Sponsors – On average, the Department expects that each on-site review will take two full business days and will be preceded by written notice 10 days in advance and a request for certain specified documents.

8. DHS Launches ‘Study in the States’ – Study in the States will examine regulatory changes, expand public engagement between the government and academia, and provide a central online information hub for DHS and its agency partners to provide current and prospective students with updated and relevant visa requirements in a user-friendly format.

9. ICE Issues Notice on Special Relief for Libyan F-1 ESL Students – The relief includes employment authorization for full-time work and the opportunity for a reduced courseload.

10. ABIL Global: Australia Update – As part of “Subclass 457” visa reforms, the Australian government has announced a sponsor accreditation scheme, available beginning on November 1, 2011, for certain standard business sponsors.

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

12. Member News – Member News

13. Government Agency Links – Government Agency Links

Details:

1. House Judiciary Committee Approves E-Verify Legislation

The House of Representatives Committee on the Judiciary approved a bill on September 21, 2011, that would mandate E-Verify use by U.S. employers for all new employees. A date for consideration on the House floor has not yet been set. The bill, H.R. 2885, was introduced by Lamar Smith (R-Tex.), chairman of the Judiciary Committee.

Among other things, there reportedly was much discussion during markup of the bill about its potential effect on agricultural workers. Rep. Dan Lungren (R-Cal.) said that an E-Verify mandate would “devastate the agricultural industry,” and that the issue should be dealt with “in a practical fashion.” However, Rep. Howard Berman (D-Cal.) offered an amendment that the committee passed, which closed a loophole that would have allowed agricultural employers of returning seasonal workers to be exempt. Rep. Berman said that would amount to a “laughable de facto amnesty,” and Rep. Melvin Watt (D-Cal.) agreed that it would be a “loophole big enough to drive freight trucks, airplanes, and locomotives — all filled with illegal workers — through.” Despite closing the loophole, the bill would still give agricultural employers three years to comply.

A provision to preempt states from mandating E-Verify survived. Rep. Smith argued that preemption “is consistent with a common-sense reading of the Constitution” and that “American businesses need one federal standard for E-Verify, not 50 or more laws.”

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2. State Dept. Estimates Employment-Based Visa Availability

The October Visa Bulletin from the Department of State’s Visa Office notes that employment-based visa availability in the coming months is expected to be “Current” for the employment first preference (EB-1) category; the employment second preference (EB-2) Worldwide, Mexico, and Philippines categories; and the employment fourth and fifth categories. The Department noted that the estimates are subject to fluctuations in demand, but said that categories with a “Current” projection “will remain so for the foreseeable future.”

For categories other than those noted above, the bulletin states:

Employment Second:

China and India: The current cut-off date is approaching the most favorable date previously reached for applicants from China and India. The rapid forward movement is intended to generate demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices, which currently accounts for over 85% of all employment-based number use. Once the level of demand increases sufficiently, it may be necessary to slow or stop the cut-off movement, and a retrogression of the cut-offs at some point during the year is a distinct possibility.

Employment Third:

Worldwide: up to one month

China: one to three weeks

India: up to two weeks

Mexico: up to one month

Philippines: up to one month

The October Visa Bulletin is available at http://www.travel.state.gov/visa/bulletin/bulletin_5560.html.

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3. House Holds Hearing on Immigrant Investor Program and Job Creation

On September 14, 2011, the House of Representatives’ Subcommittee on Immigration Policy and Enforcement held a hearing on the EB-5 investor visa program. House Judiciary Committee Chairman Lamar Smith (R-Tex.) opened the hearing by declaring that the “number one job of Congress is to create jobs.” He said the investor visa program plays a part in achieving that goal. “The regional center pilot project, which is almost two decades old, has become the most used part of the investor visa program,” Rep. Smith noted. “Investment through a regional center is attractive to potential investors because they are relieved of the responsibility of running a new business and they can count indirect job creation towards the job creation requirement.” He said that the Invest in the USA trade association “has estimated that the regional center program has created or saved over 65,000 jobs in the U.S. and has led to the investment of over $3 billion in the U.S. economy.” He also noted that the program is set to expire on September 30, 2012. Rep. Smith said the hearing would focus on how to continue bringing entrepreneurs to the U.S. while rooting out fraud and abuse.

Witnesses included William Stenger, President and Chief Executive Officer, Jay Peak Resort, Vermont; Daniel Healy, Chief Executive Officer, Civitas Capital Group, Texas; Jason Mendelson, Managing Director, Foundry Group, Colorado; and Shervin Pishevar, Managing Director, Menlo Ventures, California.

Rep. Smith’s statement and the statements of the witnesses are available at http://judiciary.house.gov/hearings/hear_09142011.html.

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4. Diversity Visa 2013 Registration Begins

The online registration period for the 2013 diversity visa program (DV-2013) begins on Tuesday, October 4, 2011, at noon (EDT) and ends on Saturday, November 5, 2011, at noon (EDT). Entries must be submitted electronically with photographs. There are no fees to enter. The Department of State strongly encourages applicants not to wait until the last week to enter, because heavy demand may result in website delays and no applications will be accepted on paper or after the deadline. For fiscal year 2013, the program will make available 50,000 visas to eligible persons from countries with historically low rates of immigration to the U.S.

For DV-2013, natives of the following countries are not eligible to apply: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. For DV-2013, natives of South Sudan and Poland are now eligible.

To be eligible for the DV program, a person must be a native of one of the listed countries and must meet either the education or work experience requirement of the program. Entrants must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education, or two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The Department of Labor’s “O*Net OnLine” database, which will be used to determine qualifying work experience, is available at http://www.onetonline.org/.

The submission site is http://www.dvlottery.state.gov. A successfully registered entry will result in a confirmation screen showing the entrant’s name and a unique confirmation number. The entrant must print this confirmation screen and retain the confirmation number. Starting May 1, 2012, entrants will be able to check the status of their DV-2013 entries by returning to http://www.dvlottery.state.gov, Entrant Status Check, and entering the unique confirmation number and personal information. Entrant Status Check will be the sole means of informing entrants of their selection for DV-2013, providing instructions on how to proceed with an application if selected, and notifying entrants of their appointment for an immigrant visa interview. The Department of State warned that it will be unable to provide an entry confirmation number if it is lost.

The Department of State released “official” instructions in English and “unofficial” instructions in Albanian, Polish, Romanian, Russian, and Uzbek. The English instructions are available at http://travel.state.gov/pdf/DV_2013_instructions.pdf. For more information, see http://travel.state.gov/visa/immigrants/types/types_1318.html.

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5. Labor Dept. Postpones Revised H-2B Wage Calculations

The Department of Labor’s Employment and Training Administration has postponed for 60 days the effective date for the final rule on wage methodology for the H-2B temporary nonagricultural employment program. The effective date will be November 30, 2011. The Department said the delay will permit various courts involved in ongoing litigation concerning the rule’s implementation to determine the appropriate venue for resolution of all claims and allow the Department to avoid the possibility of administering the H-2B program under potentially conflicting court orders.

The Department explained that it published a final rule on January 19, 2011, revising the wage methodology for the H-2B program and setting the effective date of the wage rule as January 1, 2012. On June 16, 2011, in response to a challenge, the U.S. District Court for the Eastern District of Pennsylvania invalidated that date and ordered the department to announce a new effective date within 45 days. In response to that order, the Department issued a notice of proposed rulemaking on June 28, 2011, which proposed that the wage rule take effect 60 days from the date of publication of a final rule. After a period of public comment, the Department published a final rule on August 1, 2011, which set the new effective date for the wage rule as September 30, 2011, without altering the substance of the rule. With the new postponement, the effective date is now set for November 30, 2011.

The announcement is available at http://www.dol.gov/opa/media/press/eta/eta20111404.htm.

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6. SSA Inspector General Finds Anomalies in H-1B Workers’ Use of Social Security Numbers

The Social Security Administration’s Office of the Inspector General (OIG) released a report in September on H-1B workers’ use of Social Security Numbers (SSNs) that could result in more close monitoring of status violations by H-1B workers and potential liability for H-1B employers.

Based on the results of the review, the OIG estimated that about 7,131 (18 percent) of the 38,546 H-1B workers to whom the SSA assigned an SSN in 2007 may have used their SSNs for purposes other than to work for their approved employer. This estimate included about 4,433 (11 percent) H-1B workers who had posted wages during the audit period from an employer other than their Department of Homeland Security (DHS)-approved employer. The estimate also included about 2,698 (7 percent) H-1B workers who had no posted wages from 2007 through 2009.

The OIG noted that unauthorized work by H-1B workers weakens SSN integrity and may require that the agency pay future benefits to individuals who misuse an SSN to work in the U.S. In addition, the OIG noted, H-1B workers who do not work for their approved employer “could pose a risk to homeland security, because they may obtain employment in sensitive areas.”

The OIG also commented on a recent DHS study reporting that about 21 percent of the H-1B petitions it examined involved fraud or technical violations. The types of fraud identified included counterfeit or forged documents, storefront or shell businesses, no bona fide job offer, and misrepresentation of H-1B status. DHS subsequently clarified field guidance and instituted employer site visits to reduce alleged fraud and abuse in the H-1B visa program.

Additionally, the OIG noted, the Department of Justice has pursued criminal charges in some H-1B fraud cases. In one case, six individuals pled guilty to participating in a criminal conspiracy with the owner of a consulting firm to obtain H-1B visas for ineligible or unqualified individuals. All six individuals admitted that they had secured cash-paying jobs from unapproved employers instead of working for the consulting firm. In another case the OIG discussed, U.S. Immigration and Customs Enforcement agents arrested 11 individuals accused of H-1B visa fraud. This investigation involved companies that did not always have jobs available for H-1B workers, which placed the workers in non-pay status after they arrived in the U.S. These companies and workers also allegedly submitted false statements and documents to support their H-1B visa petitions, the OIG noted. Because the subject of the OIG report involved immigration enforcement and visa-related issues, the OIG said it planned to share the report with the DHS and State Department Offices of Inspector General.

The OIG recommended that SSA contact DHS to offer to establish a data match agreement to assist DHS’s efforts to identify and reduce the number of H-1B workers who may use their SSNs for purposes other than to work for their approved employer. SSA agreed with that recommendation.

The OIG report, “H-1B Workers’ Use of Social Security Numbers,” is available at http://oig.ssa.gov/sites/default/files/audit/full/pdf/A-08-11-11114.pdf.

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7. State Dept. To Conduct On-Site Reviews of Summer Work Travel Sponsors

The Department of State announced on September 23, 2011, that it plans to conduct on-site reviews of Summer Work Travel Program sponsors to evaluate regulatory compliance. The program provides foreign college and university students the opportunity to work and travel in the U.S. during their extended academic break (summer vacation) for up to four months.

The Department explained that on April 26, 2011, it published an interim final rule governing the Summer Work Travel category under the Exchange Visitor Program. In that rulemaking, the Department set forth its three-step approach to addressing a number of concerns regarding sponsor administration of this program:

  1. The Department adopted a pilot program in January 2011 to enhance protections for foreign nationals from Belarus, Bulgaria, Moldova, Romania, Russia, and the Ukraine.
  2. The Department issued the interim final rule, which incorporated many of the concepts of the pilot program into the overall Summer Work Travel Program regulations.
  3. The Department intends to conduct on-site reviews to monitor sponsor performance, to assess category-wide regulatory compliance, and to consult with sponsors about implementation of the interim final rule.

Close monitoring of Summer Work Travel sponsors during the summer of 2011 resulted in the Department’s modifying its plans for the on-site reviews. Specifically, the Department evaluated all Summer Work Travel sponsors’ compliance with program regulations regarding the maintenance of current and accurate records in the Student and Exchange Visitor Information System (SEVIS) from September 1, 2009, through August 30, 2010. It also reviewed Summer Work Travel-related complaints for the 2011 summer season and monitored the media for additional reports of program problems. As a result of these efforts, the Department determined that it will not visit sponsors based solely on their size, but instead “will conduct compliance reviews of those designated sponsors whose compliance with the relevant Exchange Visitor Program regulations deserve closer examination by the Department.”

Currently there are 51 designated sponsors in the Summer Work Travel category. Of those, the Department has identified 14 sponsors that will be reviewed. Although the Department may later decide to evaluate additional sponsors, it intends to visit these 14 sponsors (which the Department did not name but said that they together sponsor about 65 percent of all Summer Work Travel participants) between October and December 2011. On average, the Department expects that each on-site review will take two full business days and will be preceded by written notice 10 days in advance and a request for certain specified documents.

The Department said the on-site reviews will focus on evaluating the overall program administration and the effectiveness of the modifications to sponsors’ program administration resulting from implementation of the interim final rule and the pilot program. A primary goal of these reviews is to assess whether the sponsors have been able “to comply and remain in continual compliance with all provisions of Part 62” (22 CFR 62.3(b)(1)). To this end, the reviews will focus on sponsor compliance with the pilot program guidelines and participant monitoring requirements, maintenance of accurate SEVIS records, and sponsors’ relationships with third parties they have engaged to assist in carrying out the core programmatic functions inherent in the administration of exchange visitor programs (i.e., screening, selection, orientation, placement, monitoring, and the promotion of mutual understanding). Other areas of interest may include sponsors’ roles in assisting participants in finding suitable housing; decision-making processes (including the numbers of participants accepted); self-imposed compliance mechanisms; procedures for handling student participant problems (including finding new jobs for those whose pre-arranged placements were unsatisfactory); and policies for refunding deposits or payments to student participants.

Finally, the Department said it intends to use these reviews as an opportunity for sponsors to provide feedback on the pilot program and the interim final rule in general, and more specifically, sponsors’ experience with the relevant new regulatory provisions during the summer season of 2011. Feedback will be used to assist in issuing the final rule. Best practices will be collected from the on-site reviews and shared with the wider sponsor community.

Sponsors who are not included in these reviews and wish to comment should e-mail their comments and concerns to the Department at JVisas@State.gov.

The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-09-23/pdf/2011-24551.pdf.

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8. DHS Launches ‘Study in the States’

On September 16, 2011, Secretary of Homeland Security Janet Napolitano and Immigration and Customs Enforcement (ICE) Director John Morton announced an initiative to streamline the international student visa process for foreign students seeking to study in the U.S. The “Study in the States” initiative is “a key component of a government-wide effort to encourage the best and brightest foreign students to study and remain in the U.S.,” a Department of Homeland Security (DHS) media release said.

“Attracting the best and brightest international talent to our colleges and universities is an important part of our nation’s economic, scientific and technological innovation and competitiveness,” Secretary Napolitano said. “Foreign students and exchange visitors bring invaluable contributions to our nation, and the Study in the States initiative is an important step in empowering the next generation of international entrepreneurs, right here in America.”

DHS noted that more than 1.1 million active nonimmigrant students and exchange visitors and their dependents study in U.S. universities, exchange programs, and training opportunities. Study in the States will examine regulatory changes, expand public engagement between the government and academia, and provide a central online information hub for DHS and its agency partners to provide current and prospective students with updated and relevant visa requirements in a user-friendly format.

“Study in the States encourages international students who seek the wealth of educational opportunities available in the U.S. to remain here following their studies and apply their new skills here in our country,” said ICE Director Morton. “We aim to strike a balance—providing an open and welcoming experience for international students and visitors seeking information, while maintaining the integrity and security of our visa process. This site is an important step toward reaching that goal.”

DHS said that the Study in the States website is intended to be an innovative, interagency portal that will include:

  • Interactive and accessible information, allowing prospective and current students to visually navigate steps of the student visa process on their own “Road Map to Success.”
  • Links to social media websites, such as Facebook and Twitter, disseminating relevant visa requirements and information to international students, exchange visitors, and the academic community.
  • A blog with posted videos, public service announcements, relevant news, requirements, helpful tips, and success stories.

DHS said that Study in the States builds on other new policies intended to encourage talented students from other countries to study and work in the U.S. For example, earlier this year, DHS announced an extension to science, technology, engineering and math (STEM) degrees for international student studies, allowing graduates of a STEM degree to remain in the U.S. through Optional Practical Training (OPT) for up to 29 months after graduation.

For more information on the initiative, see http://studyinthestates.dhs.gov/. The announcement is available at http://www.dhs.gov/ynews/releases/20110916-study-in-the-states.shtm. A fact sheet is available at http://www.dhs.gov/ynews/releases/20110916-fact-sheet-study-in-the-states.shtm.

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9. ICE Issues Notice on Special Relief for Libyan F-1 ESL Students

U.S. Immigration and Customs Enforcement (ICE) issued a notice to SEVIS users on September 14, 2011, on special relief for Libyan F-1 students enrolled in English as a Second Language programs, as outlined in a Federal Register notice published on June 10, 2011. The relief includes employment authorization for full-time work and the opportunity for a reduced courseload. ICE noted that the goal of this relief is to provide full-time employment authorization to eligible students experiencing severe economic hardship due to the civil unrest in Libya.

The notice is available at http://www.ice.gov/doclib/sevis/pdf/1107-01broadcast-libyan-esl-student-relief.pdf. The Federal Register notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-06-10/pdf/2011-14482.pdf.

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10. ABIL Global: Australia Update

As part of “Subclass 457” visa reforms, the Australian government has announced a sponsor accreditation scheme, available beginning on November 1, 2011, for certain standard business sponsors.

The Australian Government has announced plans to introduce Accredited Sponsor (AS) status, beginning on November 1, 2011, to facilitate the priority processing of company nominations and temporary entry subclass 457 visas for sponsored employees. AS status can be applied for either with a new sponsorship application or by variation of an existing sponsorship.

The new accreditation process recognizes that many Australian businesses have a long history of good dealings with immigration authorities, including lodging a high volume of good quality, decision-ready applications and an excellent record of compliance with relevant laws.

Once accredited, the sponsorship agreement will last for 6 years; this compares with the current 3 years for standard sponsors. The same form will be used as for an application to become a standard sponsor. If the criteria for AS status are not met, the application for standard sponsorship will proceed and be assessed in the usual way.

To qualify for AS status, sponsors must demonstrate several additional characteristics above the standard sponsorship requirements at the time of application. The sponsor must:

  • be a government agency, a publicly listed company, or a private company, with a minimum of A$4 million turnover per year for the last 3 years
  • have been an active 457 visa sponsor for the past 3 years (with a break of no more than 6 months, not due to any sanction)
  • have no adverse information known about them based on monitoring by Australian immigration and workplace authorities, including formal warnings and sanctions
  • have had at least 30 subclass 457 visa holders granted in the previous 12 months
  • have lodged a high level of decision-ready applications over the previous 2 years
  • have a non-approval rate of less than 3% for the previous 3 years
  • have Australian workers comprising at least 75 percent of their workforce in Australia and a commitment to maintain this level
  • have a Collective Agreement or Enterprise Agreement that covers all 457 visa holders earning less than A$180,000 per annum.

If a sponsor fails to maintain these characteristics, AS status can be revoked, resulting in loss of access to priority processing arrangements.

Australian ABIL member Katie Malyon has indicated that the last of these requirements for AS status means that few sponsors apart from State/Territory governments will be able to access the scheme.

For more information, see http://mia.org.au/media/File/Sponsorship_Accreditation_Update.pdf?utm_medium=email&utm_campaign=MIA+Notice+Issue+201140+New+Sponsor+Accreditation+Scheme+Perth+RSMS+Fact+Sheet+Character+Test+Fact+Sheet&utm_content=MIA+Notice+Issue+201140+New+Sponsor+Accreditation+Scheme+Perth+RSMS+Fact+Sheet+Character+Test+Fact+Sheet+CID_ac9bd4bc75ade33def564400ed3ba888&utm_source=Email+marketing&utm_term=Click.

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11. New Publications and Items of Interest

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories will be released on November 8. For more information or to order, visit https://www.abil.com/green_card.cfm.

Case assistance. The U.S. Citizenship and Immigration Services (USCIS) Ombudsman has posted information about obtaining assistance with immigration cases. “If you have a problem with your USCIS application or petition, the Ombudsman may be able to help. The Ombudsman provides an impartial and independent perspective to USCIS in an attempt to resolve problems. Before contacting the Ombudsman for help, first try to resolve your problem by using the USCIS customer service options available to you.” The website lists those options, then notes that:

The Ombudsman may be able to help if:

  • You are facing an emergency or hardship caused by a mistake, error, or delay by USCIS.
  • You are experiencing a problem with your application or petition that you have not been able to resolve with USCIS.
  • Your application or petition is pending beyond USCIS processing times.

The Ombudsman is not able to help if:

  • You are seeking legal advice. The Ombudsman does not provide legal advice.
  • You are seeking assistance with an issue that does not involve USCIS. The Ombudsman’s authority is limited to assisting with problems that relate to USCIS applications, petitions, or services.

NOTE: While the Ombudsman’s Office provides impartial and independent recommendations to USCIS on how to resolve problems, the Ombudsman’s Office does not have the statutory authority to make or change USCIS decisions.

See http://www.dhs.gov/files/programs/editorial_0497.shtm.

OIG report on adjudication of petitions for nonimmigrant H-1B and H-2B workers. The Department of Homeland Security’s Office of Inspector General recently published “The U.S. Citizenship and Immigration Services’ Adjudication of Petitions for Nonimmigrant Workers (I-129 Petitions for H-1B and H-2B Visas.” The OIG said that Immigration Services Officer (ISO) fraud training is “decentralized and inconsistent” and could be improved. The OIG recommended that the USCIS Director: (1) develop and implement a national, post-basic fraud identification and response training program that identifies current fraud trends; and (2) ensure that this fraud training is conducted annually for all ISOs and supervisors responsible for H-1B and H-2B adjudication. The USCIS Director concurred with both recommendations. The report is available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_11-105_Aug11.pdf.

ICE fact sheet on applying for a driver’s license or ID card for F, M, J nonimmigrants. U.S. Immigration and Customs Enforcement released a fact sheet for designated school officials and responsible officers to help F, M, or J nonimmigrants (primary and dependent) obtain driver’s licenses or state identification cards. The fact sheet, which includes general questions and answers, known issues, and contact information, is available at http://www.ice.gov/doclib/sevis/pdf/dmv_factsheet.pdf.

Health profession workforce development. The Department of Health and Human Services’ Health Resources and Services Administration (HRSA) is the lead federal agency responsible for collecting data and certifying communities as Health Professional Shortage Areas. The website includes information on health profession grants, scholarships, and loans; a fact sheet; and a link to the American Recovery and Reinvestment Act. See http://bhpr.hrsa.gov/about/index.html.

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12. Member News

Steve Clark moderated Session 3 of the ABIL webinar series, “U.S. Investment Visas and Green Cards for Foreign Nationals.” Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, was held on August 16, 2011. Panelists included ABIL members Robert Loughran as well as Stephen Yale-Loehr and H. Ronald Klasko.

Robert Loughran was invited on August 15, 2011, to meet with the leadership of the Texas Department of Public Safety (DPS) regarding new lawful presence documentation language that has been added to the Texas Transportation Code and to comment on proposed DPS regulatory guidance and training in order to minimize inconvenience and discrimination toward immigrants in Texas applying for licenses and identification cards.

Cyrus Mehta has posted a new blog entry. “Reinterpreting the Automatic Conversion Provision of the CSPA to help DREAM Kids” is available at http://cyrusmehta.blogspot.com/2011/09/reinterpreting-automatic-conversion.html.

Mr. Mehta was on a panel at the 5th Biennial Global Immigration Conference of the International Bar Association in London on September 23-24, 2011. For more information, see http://www.int-bar.org/conferences/conf383/binary/London%20Global%20Immigration%202011%20programme.pdf. He also spoke on a panel on “Teaching Ethics Across the Curriculum” for Brooklyn Law School faculty on September 21.

Angelo Paparelli has posted a new blog entry. “Off-Message Immigration Bureaucrats Undermine President’s Jobs Push by Refusing L-1B Visas to Indian Citizens” is available at http://bit.ly/mODJd7.

Stephen Yale-Loehr was quoted in Bloomberg Businessweek. In comments on the EB-5 investor program, he said, “This is a unique way for immigration to enhance the U.S. economy … at no expense to the U.S. taxpayer.”

Mr. Yale-Loehr was featured on a one-hour radio talk show on WAMU on September 28, 2011, about the EB-5 program. The URL for the interview is at http://thekojonnamdishow.org/shows/2011-09-28/investment-immigration (click on “Listen”).

Mr. Yale-Loehr was quoted in the September 29, 2011, edition of the Wall Street Journal. In an article about a federal judge’s upholding of key parts of a new Alabama law aimed at stopping illegal immigration, Mr. Yale-Loehr noted, “Judge Blackburn seems to believe it’s not a crime for an undocumented immigrant to solicit work but it is a crime for an undocumented person to do business with the state. The Supreme Court needs to decide this issue once and for all.” The article is available at http://online.wsj.com/article/SB10001424052970204226204576599012968434494.html?grcc=88888&mod=WSJ_hpp_sections_news.

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13. 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

Visa application wait times for any post

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