News from the Alliance of Business Immigration Lawyers Vol. 7, No. 11B • November 15, 2011

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Headlines:

1. H-1B Numbers Dwindling Fast, File Now! – Once the numbers under the cap are gone, the next opportunity to file will be April 1, 2012, for work to begin October 1, 2012.

2. USCIS Issues Draft EB-5 Memo – USCIS seeks stakeholder input on “foundational issues” before providing greater detail.

3. Employers May Bundle L-1 Filings, USCIS Announces – USCIS will consider multiple applications grouped into “bundles” of L-1 petitions as part of an effort to streamline and improve the adjudication process.

4. USCIS Extends Honduras, Nicaragua TPS Designations and EADs – The designations are extended through July 5, 2013. The 60-day re-registration period ends on January 5, 2012.

5. State Dept. Releases Fact Sheet on Growing Demand for Visas; Greatest Increase From China, Brazil – During the past five years, visa issuances have increased 234 percent in Brazil, 124 percent in China, 51 percent in India, and 24 percent in Mexico.

6. DOL Releases New PERM FAQ on Listing Job Duties Not Normal to Occupation; Discusses Updates to SOC Codes – DOL has posted a revised FAQ sheet regarding the PERM labor certification program and listing job requirements not normal to the occupation; the agency also said it is working to incorporate new SOC codes into the online application system.

7. DOL Offers Free Labor Law Training in December for Florida Agricultural Employers, Farm Labor Contractors – Most agricultural employers, agricultural associations, and farm labor contractors are subject to federal law that protects migrant and seasonal agricultural workers.

8. Coast Guard Seeks Comments on Mechanisms of Compliance With U.S. Citizenship Requirements for Owners of Vessels Engaging in Restricted Trades by Publicly Traded Companies – The Coast Guard is seeking comments and information on the various mechanisms that publicly traded companies use to assure compliance with a citizenship requirement.

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. H-1B Numbers Dwindling Fast, File Now!

U.S. Citizenship and Immigration Services (USCIS) announced on November 14, 2011, that it has accepted (approved or pending) 56,300 H-1B petitions subject to the 65,000 numerical limitation (cap) for fiscal year (FY) 2012. Up to 6,800 visas are set aside from the 65,000 cap during each fiscal year for the H-1B1 program under the terms of legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

Also, the 20,000 cap for those with advanced U.S. degrees has been reached. By contrast, last year as of October 29, 2010, only 16,700 had been used.

The Alliance of Business Immigration Lawyers (ABIL) recommends that employers needing H-1B workers file quickly. Numbers could be gone within a few weeks. Once the numbers under the cap are gone, the next opportunity to file will be April 1, 2012, for work to begin October 1, 2012.

Contact your ABIL attorney for details. More information on the cap count is available at http://www.uscis.gov/h-1b_count.

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2. USCIS Issues Draft EB-5 Memo

U.S. Citizenship and Immigration Services (USCIS) recently released a draft memorandum to address “certain foundational issues” in the EB-5 immigrant investor program. USCIS seeks stakeholder input on these foundational issues before providing greater detail and addressing additional issues.

On a conference call held on November 9, 2011, to discuss the draft memo, Mr. Mayorkas said that it differs from other policy memos in that it gives adjudicators the context of the EB-5 program: that it is important because it creates jobs for U.S. workers. Mr. Mayorkas said that this context should guide adjudicators.

The memo also lays out the preponderance of evidence standard: “[T]he petitioner must establish each element by a preponderance of the evidence. That means that the petitioner must prove to us that what he or she claims is more likely so than not so. This is a lower standard of proof than the standard of ‘clear and convincing,’ and even lower than the standard ‘beyond a reasonable doubt’ that applies only to criminal cases. The petitioner does not need to remove all doubt from our adjudication, but must instead show that what he or she presents is more probable than not.”

In general, the memo will only take effect when USCIS finalizes it. However, effective immediately, USCIS generally will defer to a state’s targeted employment area (TEA) designation. The memo notes: “USCIS is to give deference to the state’s designation of the boundaries of the geographic or political subdivision that will be the targeted employment area.” It adds, however, that “USCIS must ensure compliance with the statutory requirement that the proposed area has an unemployment rate of at least 150 percent of the national average rate. For this purpose, USCIS will review state determinations of the unemployment rate and, in doing so, USCIS can assess the method or methods by which the state authority obtained the unemployment statistics.”

The memo also clarifies that while the immigrant’s investment must result in the creation of jobs for qualifying employees, it is the new commercial enterprise that creates the jobs. An investor’s money that goes into a new commercial enterprise can be used in a variety of ways, including bridge financing, hiring personnel, or operating the company.

USCIS Director Alejandro Mayorkas said the draft memorandum is a “work in progress,” and that the agency is sharing it now “to obtain valuable real-time input and to define a collaborative approach with the stakeholder community.” He noted that the draft memorandum “is not operative and will not guide adjudication decisions until it is published in complete and final form. Current policy memoranda continue to guide our adjudications.” Mr. Mayorkas said that USCIS plans to consolidate all existing EB-5 memos into one. A second draft will incorporate comments received from stakeholders and add details from other existing EB-5 memos.

Mr. Mayorkas said people have until December 9, 2011, to comment. Additional opportunity to comment will be available after the second draft is released, which Mr. Mayorkas said would be soon after the 30-day comment period ends.

The draft memo and a statement from Mr. Mayorkas are available at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Draft%20Memorandum%20for%20Comment/EB_5_Adjudications_Policy3.pdf. USCIS announced the extension of the comment period until December 9, 2011, at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=a6aafa4b01b38210VgnVCM100000082ca60aRCRD&vgnextchannel=a6aafa4b01b38210VgnVCM100000082ca60aRCRD.

 

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3. Employers May Bundle L-1 Filings, USCIS Announces

U.S. Citizenship and Immigration Services (USCIS) recently said it recognizes that businesses may need to temporarily move multiple employees to the United States for particular projects that require the employees’ specialized knowledge. To do this, USCIS said that employers may petition for their employees to obtain L-1 nonimmigrant classification by filing Form I-129, Petition for a Nonimmigrant Worker. While each L-1 petition must be considered on its own merits, USCIS will consider multiple applications grouped into “bundles” of L-1 petitions as part of an effort to streamline and improve the adjudication process.

For USCIS to consider the bundle, all included L-1B petitions must be related to employees on the same project, who will work at the same location, and who have the same specialized knowledge duties.

USCIS will also consider petitions for L-1A managers included with the bundle, if they will be managing the L-1B beneficiaries who will be working on the project. In addition, USCIS will consider Forms I-539, Application to Extend/Change Nonimmigrant Status, filed for a beneficiary’s qualifying dependents included in the bundle.

The agency also offered filing tips for bundling L-1 petitions. The information is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e2260dbba1563310VgnVCM100000082ca60aRCRD&vgnextchannel=bfd10b89284a3210VgnVCM100000b92ca60aRCRD.

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4. USCIS Extends Honduras, Nicaragua TPS Designations and EADs

DHS determined that an extension is warranted because the conditions in Honduras and Nicaragua that prompted the TPS designations continue to be met. There continues to be a substantial, but temporary, disruption of living conditions in both countries resulting from Hurricane Mitch, and they remain temporarily unable to handle adequately the return of their nationals.

The notices also set forth procedures for nationals of the two countries (or those having no nationality who last habitually resided in them) with TPS to re-register and to apply for an extension of their Employment Authorization Documents (EADs) (Forms I–766) with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who previously registered for TPS under the designations and whose applications have been granted or remain pending. Certain nationals of Honduras and Nicaragua (or those having no nationality who last habitually resided in either of those countries) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions.

USCIS will issue new EADs with a July 5, 2013, expiration date to eligible TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the time frames involved with processing TPS re-registration applications, DHS said it recognizes that all re-registrants may not receive new EADs until after their current EADs expire on January 5, 2012. Accordingly, the notices automatically extend the validity of EADs issued under the TPS designations for six months, through July 5, 2012, and explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on Form I–9 and E-Verify work authorization verification.

The Honduras extension notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-11-04/pdf/2011-28321.pdf. A related USCIS notice with links to forms is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b4677b300df53310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The Nicaraguan extension notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-11-04/pdf/2011-28316.pdf. A related USCIS notice with links to forms is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e5b77b300df53310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A general notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=48a9dc273a963310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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5. State Dept. Releases Fact Sheet on Growing Demand for Visas; Greatest Increase From China, Brazil

In a fact sheet released on October 24, 2011, the Department of State said that demand for U.S. visas is growing, and that the agency is “committed to increasing visa adjudications by one-third in FY 2012 in both China and Brazil, two countries where we have seen the greatest increase in visa demand.” During the past five years, visa issuances have increased 234 percent in Brazil, 124 percent in China, 51 percent in India, and 24 percent in Mexico. In fiscal year 2011, consular officers processed more than one million visas in China, an increase of more than 35 percent over last year.

At the busiest U.S. consular posts, officers may interview more than 100 visa applicants per day. Preliminary numbers indicate that consular officers processed more than 9.6 million visa applications in FY 2011. Of those, the Department issued more than 7.5 million U.S. visas, an increase of more than 17 percent over the previous fiscal year, during which 6.4 million visas were issued. During the past five years, visa issuances have increased 234 percent in Brazil, 124 percent in China, 51 percent in India, and 24 percent in Mexico. In fiscal year 2011, consular officers processed more than one million visas in China, an increase of more than 35 percent over last year.

The Department of State noted that according to Department of Commerce figures, 60 million visitors entered the United States in 2010, and 35 percent of those visitors entered using visas issued by the Department of State. International travel to the United States generated $134 billion in revenue and supported 1.1 million U.S. jobs in 2010, the Department of Commerce reported. The Department of Commerce estimated that the number of potential visitors to the United States will increase six to nine percent annually for the next five years, and could reach 88 million visitors by 2016.

The Department of State said it is adding 98 visa adjudicators this year and next in China and Brazil. A number of these new adjudicators are being hired through a pilot program that targets applicants who already speak Mandarin or Portuguese. The Department expects the first group of these special hires to arrive at posts in China and Brazil in spring 2012. A second group will follow in summer 2012.

Some posts in China and Brazil are operating with extended hours to maximize use of existing facilities. Working bilaterally with host governments, the Department of State is also working to expand and improve visa processing facilities to allow for more applicant interviews.

Wait times for visa appointments can fluctuate significantly depending on seasonal demand, the Department of State noted, adding that “[a]t most posts around the world, visa applicants wait less than one week for an interview appointment. We will continue to send temporary duty officers to manage seasonal spikes in demand.”

Wait times for student visa interview appointments worldwide are less than 15 days, the Department said. Student visa appointments are prioritized “because of the tremendous intellectual, social, and economic benefits foreign students provide to the U.S. economy.” Department of Commerce figures show that international students contributed nearly $20 billion to the U.S. economy during the 2009-2010 academic year, the Department of State noted.

The Department of State said that U.S. embassies and consulates have established procedures to expedite interview appointments for urgent business travel. “U.S. officials work closely with American Chambers of Commerce in more than 100 countries to streamline the visa process for business travelers,” the fact sheet states.

The Department said its Business Visa Center facilitates visa application procedures for U.S. companies and convention organizers who invite employees or current and prospective business clients to the United States. The Center handled nearly 3,500 requests in FY 2011. U.S.-based businesses may e-mail businessvisa@state.gov or call 202-663-3198 for more information.

The fact sheet, “State Department Supports Global Travel Growth,” is available at http://www.state.gov/r/pa/prs/ps/2011/10/176049.htm.

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6. DOL Releases New PERM FAQ on Listing Job Duties Not Normal to Occupation; Discusses Updates to SOC Codes

The Department of Labor has posted a revised frequently asked questions (FAQ) sheet regarding the PERM program and listing job requirements not normal to the occupation on both the ETA Form 9141, Prevailing Wage Request, and the ETA Form 9089.

The brief FAQ states:

Does informing the National Prevailing Wage Center (NPWC) on a prevailing wage request (ETA Form 9141) that the job contains requirements not normal to the occupation meet an employer’s obligation to inform the Department of Labor (Department) of these requirements on the Application for Permanent Employment Certification (ETA Form 9089)?

No. Even if the employer has informed the NPWC of these requirements in a prevailing wage request (ETA Form 9141), the employer must still accurately outline its requirements on Questions H.12 or H.13 of the Application for Permanent Employment Certification (ETA Form 9089).

The Department also said it is working to incorporate new and/or revised Standard Occupational Classification (SOC) codes into the PERM online application system. Until the new codes are fully integrated, they may not be available in the online system and the Atlanta National Processing Center will accept the older SOC codes even though they may not match the code indicated on the prevailing wage determination. The Office of Foreign Labor Certification suggested that filers “may also consider placing the new SOC job title in section H.3, and the new SOC code in section H.14 of the ETA Form 9089.”

The PERM FAQ, which replaces the previous notice that referred to the State Workforce Agency (SWA), is available at http://www.foreignlaborcert.doleta.gov/pdf/faq_job_req_duties_consider_norm_ocup.pdf. The announcement about SOC codes is available at http://www.foreignlaborcert.doleta.gov/.

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7. DOL Offers Free Labor Law Training in December for Florida Agricultural Employers, Farm Labor Contractors

The Department of Labor is inviting agricultural employers and farm labor contractors in Florida to attend a free compliance assistance workshop in December, organized by the Wage and Hour Division (WHD), to increase compliance with the Migrant and Seasonal Agricultural Worker Protection Act (MSPA) and the H-2A section of the Immigration Reform and Control Act. These training sessions are part of the WHD’s multi-year enforcement initiative aimed at strengthening compliance in Florida’s agricultural industry.

The Department noted that virtually all employees engaged in agriculture are covered by federal law because they produce goods for interstate commerce. Most agricultural employers, agricultural associations, and farm labor contractors are subject to the MSPA, which protects migrant and seasonal agricultural workers by establishing employment standards related to wages, housing, transportation, disclosures, and record-keeping. The MSPA also requires farm labor contractors to register with the Department of Labor.

Training topics will include no-cost housing and transportation arrangements, employee work hours and wage rates, and record-keeping requirements. There are three dates/times available to attend the training:

  • The first training will be held on Monday, December 5, 2011, at 5:30 p.m. EST at South Florida Community College’s DeSoto Campus, 2251 Turner Ave. NE, Arcadia, FL 34266.
  • On Tuesday, December 6, the same training will be held at 5:30 p.m. EST at South Florida Community College’s Highlands Campus, 600 West College Drive, Avon Park, FL 33825.
  • On Wednesday, December 7, the training will be presented at 5:30 p.m. EST at the Florida Strawberry Growers Association Education and Event Center, 13138 Lewis Gallagher Road, Dover, FL 33527.

To register or request more information on these free trainings, call Mike Rios, WHD, at 813-857-3868. The notice is available at http://www.dol.gov/opa/media/press/whd/WHD20111572.htm.

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8. Coast Guard Seeks Comments on Mechanisms of Compliance With U.S. Citizenship Requirements for Owners of Vessels Engaging in Restricted Trades by Publicly Traded Companies

Under existing statutes, at least 75 percent of the ownership of vessels eligible to engage in the coastwise or fisheries trades must be vested in U.S. citizens. The Coast Guard is seeking comments and information on the various mechanisms that publicly traded companies use to assure compliance with the citizenship requirement.

The Coast Guard noted that the process for determining the citizenship relies on self-certification. The Coast Guard therefore deems the burden of proof to fall on the company to establish its qualifications when evidence of possible noncompliance is found.

Although the Coast Guard may use information obtained in response to the notice to inform future rulemakings, it is not presently developing a new or revised regulation on this subject.

The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-11-03/pdf/2011-28447.pdf.

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9. New Publications and Items of Interest

New federal government website. As of November 5, 2011, “FDsys” (Federal Digital System) is the Government Printing Office’s only site for both current and historical information from all three branches of the federal government. FDsys now includes links to federal regulations, presidential documents, legislation, hearing testimony, the Congressional Record, congressional reports, the Constitution, economic indicators, public and private laws, the U.S. Code, and U.S. court opinions. Also included are links to the U.S. government bookstore, the catalog of U.S. government publications, the GPO’s inspector general and congressional relations offices, and information about federal depository libraries. GPO Access remains temporarily available as a reference archive, but will be shut down in 2012. FDsys is available at http://www.gpo.gov/fdsys/.

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.

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 on November 3, 2011, in Dolan Media Newswires Finance & Commerce (Minneapolis, MN) in an article on the EB-5 category for foreign investors. She noted that many designated regional centers don’t produce a lot of deals, but the small number of centers that do can often assemble $150 million at one time, with 100 or so foreign investors contributing $500,000 to $1 million each. Ms. Danielson also noted that “[t]he University of Minnesota has one of the largest (if not the largest) Chinese student populations in the country. I think that there are great synergies between these students, their families and Minnesota that would make Minnesota a popular regional center.” She also said she sees significant potential in a Minnesota-based EB-5 regional center helping to bring foreign investment into economically depressed urban areas such as north Minneapolis.

Cyrus Mehta has published several new blog entries. “The Ethical Role of the Attorney Under Alabama’s Anti-Immigrant Law” and “Visa Options for Foreign Entrepreneurs in the U.S. – While Keeping an Eye on the Potential Traps and Pitfalls.”

Angelo Paparelli has published a new blog entry. “Missive from Mumbai: Why Are U.S. Immigration Agencies Attacking India and Hurting America?”

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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. 11A • November 01, 2011

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Headlines:

1. H-1B Numbers Dwindling for FY 2012, File Now! – Once the numbers under the cap are gone, the next opportunity to file will be April 1, 2012, for work to begin in FY 2013.

2. EB-2 India, China EB-2 Visa Numbers Jump; Other Visa News – The November employment-based second preference cut-off date for applicants from China and India is the most favorable since August 2007.

3. USCIS To Begin Sending Approval Notices to Attorneys Again Shortly – The change will take effect in approximately six weeks.

4. Reminder: DV Lottery Registration Ends November 5 – The Department of State strongly discourages applicants from waiting until the last minute to enter, because heavy demand may result in website delays and no applications will be accepted after the deadline.

5. USCIS Announces ‘Entrepreneurs in Residence’ Initiative, Discusses EB-5 Enhancements – The initiative builds upon USCIS’s recent efforts to promote startup enterprises and spur job creation, including enhancements to the EB-5 immigrant investor visa program.

6. ‘Fairness for High-Skilled Immigrants Act’ Bill Heads to House Floor for Consideration – The bill would eliminate the per-country numerical limitation for employment-based immigrants and increase it for family-based immigrants.

7. Employment Authorization Document, Certificate of Citizenship Redesigned – The agency anticipates that more than 1 million people will receive the new documents over the next year.

8. DHS Secretary Napolitano Testifies on E-Verify, Enforcement Efforts – In FY 2011, ICE criminally arrested 221 employers accused of violations related to employment, which Secretary Napolitano noted was “an agency record.”

9. ICE Announces Record Removal Numbers for FY 2011 – In FY 2011, ICE’s Office of Enforcement and Removal Operations removed 396,906 individuals, the largest number in the agency’s history.

10. USCIS Designates South Sudan for TPS, Extends Sudan Designation – The 180-day registration period for eligible individuals from South Sudan to submit initial TPS applications began on October 13, 2011, and will remain in effect until April 10, 2012.

11. ABIL Global: Italy Requires Fingerprints for North Africans – Italy now requires fingerprints for short-term visas (business and tourism) for North Africans, as part of a larger European Union effort.

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

13. Member News – Member News

14. Government Agency Links – Government Agency Links

Details:

1. H-1B Numbers Dwindling for FY 2012, File Now!

U.S. Citizenship and Immigration Services (USCIS) announced on October 21, 2011, that it has accepted (approved or pending) 46,200 H-1B petitions subject to the 65,000 numerical limitation (cap) for fiscal year (FY) 2012. Up to 6,800 visas are set aside from the 65,000 cap during each fiscal year for the H-1B1 program under the terms of legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

Also, the 20,000 cap for those with advanced U.S. degrees has been reached. By contrast, last year as of October 29, 2010, only 16,700 had been used.

The Alliance of Business Immigration Lawyers (ABIL) recommends that employers needing H-1B workers file quickly. Once the numbers under the cap are gone, the next opportunity to file will be April 1, 2012, for work to begin in FY 2013.

Contact your ABIL attorney for details. More information on the cap count is available at http://www.uscis.gov/h-1b_count.

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2. EB-2 India, China EB-2 Visa Numbers Jump; Other Visa News

The November 2011 Visa Bulletin includes the following information:

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.

In recent remarks, Charles Oppenheim of the Department of State’s Visa Office discussed predictions for employment-based visa numbers. Among other things, Mr. Oppenheim anticipates that in December 2011, the EB-2 priority date for China and India will move to March 1, 2008, and there could be additional movement in January and February. After that movement, these two categories may slow down and possibly retrogress later in the year.

Mr. Oppenheim predicted that the EB-3 category for Mexico, Philippines, and most other countries should move forward one month every month. The EB-3 category for China is expected to advance one to three weeks per month in the near future.

Prospects for India’s EB-3 category do not look so promising. There are 54,000 cases pending since 2007, and many more with subsequent priority dates that have not yet been filed. Only 2,800 are allowed per year. Potentially this could mean 225,000 to 300,000 people waiting in line for India EB-3 visa numbers, including dependents. Mr. Oppenheim noted that over 50 percent of H-1Bs are given to Indian nationals every year; he said the majority will apply for permanent residence.

The EB-1 and 2 categories for all countries, Mexico, and Philippines, are expected to remain Current for some time, Mr. Oppenheim said. Last year there were 18,000-20,000 fewer cases filed in the EB-1 category, which allowed more EB-1 China and India petitions to move forward along with some EB-2 adjustments from those countries.

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

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3. USCIS To Begin Sending Approval Notices to Attorneys Again Shortly

In mid-September, U.S. Citizenship and Immigration Services (USCIS) began sending the I-797 Notice of Action for employer-based visa petitions directly to the company filing the petition rather than the attorney-of-record. After hearing from both companies and attorneys about the negative consequences of this policy change, the USCIS announced on October 20, 2011, that it will once again begin sending approval notices to attorneys. USCIS stated that the change will take effect in approximately six weeks. Accordingly, employers should still remain vigilant in checking their mail for immigration-related documents from USCIS for at least the next two months.
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4. Reminder: DV Lottery Registration Ends November 5

The online registration period for the 2013 diversity visa program (DV-2013), also known as the green card lottery, ends on Saturday, November 5, 2011, at noon (EDT). Entries must be submitted electronically only (no paper applications) with photographs. There are no fees to enter. The Department of State strongly discourages applicants from waiting until the last minute to enter because heavy demand may result in website delays and no applications will be accepted after the deadline. The program makes available 50,000 immigrant visas to eligible persons from countries with historically low rates of immigration to the United States.

For more information or to submit an application, go to https://www.dvlottery.state.gov/.

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5. USCIS Announces ‘Entrepreneurs in Residence’ Initiative, Discusses EB-5 Enhancements

As part of the Obama administration’s “Startup America” efforts to encourage high-skilled immigration into the U.S. under existing laws, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas recently announced the “Entrepreneurs in Residence” initiative to use “industry expertise to strengthen USCIS policies and practices surrounding immigrant investors, entrepreneurs and workers with specialized skills, knowledge, or abilities.” Director Mayorkas announced the initiative at the High Growth Entrepreneurship Listening and Action Session at AlphaLab in Pittsburgh, before the quarterly meeting of the President’s Council on Jobs and Competitiveness with President Obama.

Director Mayorkas said the introduction of expert views from the private and public sectors “will help us to ensure that our policies and processes fully realize the immigration law’s potential to create and protect American jobs.”

USCIS will launch the “Entrepreneurs in Residence” initiative with a series of informational summits with industry leaders to gather strategic input. Informed by the summits, the agency will create a tactical team including entrepreneurs and experts, working with USCIS personnel, “to design and implement effective solutions.” Director Mayorkas said the initiative “will strengthen USCIS’s collaboration with industries at the policy, training, and officer level[s], while complying with all current Federal statutes and regulations.”

The initiative builds upon USCIS’s recent efforts to promote startup enterprises and spur job creation, including enhancements to the EB-5 immigrant investor visa program. USCIS said that since August, it has been conducting a review of the EB-5 process, working with business analysts to enhance related adjudications, implementing direct access to adjudicators for EB-5 regional center applicants, and launching new specialized training modules for USCIS officers on the EB-2 visa classification and L-1B nonimmigrant intracompany transferees.

At a related press conference, Director Mayorkas explained that “[w]e as an agency have been focused in the absence of legislative action to create newer broader pathways for the best and brightest from around the world to come to the United States and really take advantage of the opportunities here to enable our economy to grow and to create jobs for American workers.” He said that the administration is “reviewing our policies and our processes to ensure that we are capturing the existing laws and the legislative intent behind those laws.”

Director Mayorkas said that “Entrepreneurs in Residence” and what it represents “cuts across all visa lines and is not limited to the EB-5 program by any measure.” He said that DHS will be looking at the initiative’s applicability in the arts and entertainment arenas, the O and P visa lines, and the H-1 categories.

He also noted that DHS does not plan to bring in a large cadre of experts, but rather “to start tactically and surgically” with a small group of people, some working on strategy and some on tactics. He said that DHS is still working out the details and will release more information on next steps later.

USCIS’s statement on “Entrepreneurs in Residence” is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=bd537158910e2310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A transcript of a related press conference held in October 2011 is available at http://www.uscis.gov/USCIS/News/2011/October%202011/transcript_eir_11Oct11.pdf.

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6. ‘Fairness for High-Skilled Immigrants Act’ Bill Heads to House Floor for Consideration

Rep. Jason Chaffetz (R-Utah) introduced the “Fairness for High-Skilled Immigrants Act” (H.R. 3012) on September 22, 2011. The House Judiciary Committee approved the bill with changes on October 27. It now goes to the full House of Representatives for a vote. The bill would eliminate the per-country numerical limitation for employment-based immigrants over three years and increase it for family-based immigrants, from 7 percent per country to 15 percent per country. It also would amend the Chinese Student Protection Act of 1992 to eliminate the provision requiring the reduction of annual Chinese (PRC) immigrant visas to offset status adjustments under the Act.

In media releases, Rep. Chaffetz said, “Per-country limits make no sense in the context of employment-based visas. Companies view all highly skilled immigrants as the same regardless of where they are from—be it India or Brazil. By removing per-country limits, American companies will be able to access the best talent.” He noted that the current percentage cap “has created a backlog of qualified workers.” Rep. Chaffetz pointed out that the legislation will not adversely affect the wages and working conditions of similarly employed workers in the US. but will “encourage high-skilled immigrants who were educated in the U.S. to stay and contribute to our economy, rather than taking the skills they learned and aiding our competitor nations.”

Co-sponsors of the bill include Reps. Tim Griffin (R-Ariz.), Zoe Lofgren (D-Cal.), and Lamar Smith (R-Tex.). It is supported by the U.S. Chamber of Commerce; Compete America, a coalition of high-tech companies including Microsoft, Google, and Oracle; various trade groups including the Business Software Alliance, the Semiconductor Industry Association, and the Information Technology Industry Council; and Immigration Voice, a leading coalition of highly skilled foreign professionals.

Rep. Chaffetz’s statement is available at http://chaffetz.house.gov/press-releases/2011/10/chaffetz-sponsored-immigration-bill-passes-house-judiciary-committee.shtml. The text of the bill is available at http://www.gpo.gov/fdsys/pkg/BILLS-112hr3012ih/pdf/BILLS-112hr3012ih.pdf

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7. Employment Authorization Document, Certificate of Citizenship Redesigned

U.S. Citizenship and Immigration Services (USCIS) announced a redesigned Employment Authorization Document (EAD) and Certificate of Citizenship (Form N-560) with new security features. USCIS began issuing the new EADs on October 25, 2011, and the new N-560s on October 30. The agency anticipates that more than 1 million people will receive the new documents over the next year.

USCIS will replace EADs already in circulation as individuals apply for their renewal or replacement. All previously issued EADs remain valid until the expiration date printed on the card. Previously issued Certificates of Citizenship remain valid indefinitely.

USCIS said the new features of the EAD will better equip workers, employers, and law enforcement officials to recognize the card as definitive proof of authorization to work in the United States. USCIS said it worked closely with the Immigration and Customs Enforcement Forensic Document Laboratory to incorporate technology and tactile features to deter counterfeiting, tampering, and fraud, and to facilitate card authentication.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=338ce8ba05b33310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=19a9e8ba05b33310VgnVCM100000082ca60aRCRD&vgnextchannel=acffaca797e63110VgnVCM1000004718190aRCRD.

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8. DHS Secretary Napolitano Testifies on E-Verify, Enforcement Efforts

Department of Homeland Security (DHS) Secretary Janet Napolitano testified at an oversight hearing on October 26, 2011, before the House Judiciary Committee on worksite enforcement and the E-Verify program, among other issues. She noted that since fiscal year (FY) 2009, U.S. Immigration and Customs Enforcement (ICE) has audited more than 6,000 employers suspected of hiring unauthorized workers, debarred 441 companies and individuals from receiving federal contracts, and imposed more than $76 million in financial sanctions, which she said was more than the total number of audits and debarments conducted during the entire previous administration. In FY 2011, ICE also criminally arrested 221 employers accused of violations related to employment, which Secretary Napolitano noted was “an agency record.”

As of FY 2011, she noted, more than 292,000 employers have enrolled in E-Verify, representing more than 898,000 locations. More than 1,000 new employers enroll each week, and the number of employers enrolled in E-Verify has more than doubled each fiscal year since 2007. In FY 2011 alone, E-Verify processed 17.4 million employment queries, she said.

To improve E-Verify’s accuracy, USCIS reduced mismatches for naturalized and derivative U.S. citizens by adding naturalization data and U.S. passport data to E-Verify, Secretary Napolitano said. Because of this enhancement, in FY 2011, “more than 80,000 queries that previously would have received an initial mismatch requiring correction at the secondary verification stage were automatically verified as work-authorized,” she said. USCIS also has added 80 staff positions to support monitoring and compliance since the beginning of FY 2010. Also, to counter identity theft, USCIS now allows for the verification of passport photos through the E-Verify system.

Judiciary Committee Chairman Lamar Smith (R-Tex). said it was true that DHS has increased the number of audits of companies’ employment eligibility verification forms. However, he said, “these audits are of questionable benefit,” citing a U.S. Government Accountability Office report stating that ICE officials have said that fine amounts are so low that they are not a meaningful deterrent and “employers view the fines as a cost of doing business, making the fines an ineffective deterrent.” He called for more worksite enforcement actions, stating that when ICE does not arrest undocumented workers, “[t]hey go down the street and knock on the door of the next employer, and take jobs away from American workers.”

Secretary Napolitano’s written testimony is available at http://judiciary.house.gov/hearings/pdf/Napolitano%2010262011.pdf. Rep. Smith’s statement is available at http://judiciary.house.gov/news/Statement%20DHS%20Oversight%20Hearing.html.

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9. ICE Announces Record Removal Numbers for FY 2011

U.S. Immigration and Customs Enforcement (ICE) recently announced the agency’s fiscal year (FY) 2011 year-end removal numbers. Overall, in FY 2011, ICE’s Office of Enforcement and Removal Operations removed 396,906 individuals, the largest number in the agency’s history. Of these, nearly 55 percent, or 216,698 of the people removed, were convicted of felonies or misdemeanors, an 89 percent increase in criminal removals since FY 2008. This includes 1,119 people convicted of homicide; 5,848 people convicted of sexual offenses; 44,653 people convicted of drug-related crimes; and 35,927 people convicted of driving under the influence.

The ICE announcement is available at http://www.ice.gov/news/releases/1110/111018washingtondc.htm.

 

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10. USCIS Designates South Sudan for TPS, Extends Sudan Designation

The Department of Homeland Security (DHS) has designated the Republic of South Sudan for temporary protected status (TPS) for 18 months, effective November 3, 2011, through May 2, 2013. The 180-day registration period for eligible individuals to submit initial TPS applications began on October 13, 2011, and will remain in effect until April 10, 2012.

This designation allows eligible South Sudan nationals (and those having no nationality who last habitually resided in the region that is now South Sudan) who have continuously resided in the United States since October 7, 2004, to obtain TPS. In addition to demonstrating continuous residence in the United States since October 7, 2004, applicants must demonstrate that they have been continuously physically present in the United States since November 3, 2011.

DHS said this designation is unique because on July 9, 2011, South Sudan became a new nation and independent from the Republic of Sudan, which has been designated for TPS since 1997. Some individuals who are TPS beneficiaries under the current designation of Sudan may now be nationals of South Sudan, calling into question their continued eligibility for TPS under the Sudan designation. These individuals may, however, now qualify for TPS under the South Sudan designation. The 18-month designation of South Sudan coincides with the 18-month extension period of TPS for Sudan, which was also announced on October 13, 2011.

DHS said it recognizes that individuals who have employment authorization documents (EADs) under Sudan TPS that expire on November 2, 2011, may not receive new EADs under South Sudan TPS until after their current EADs expire. Accordingly, the validity of EADs issued under the TPS designation of Sudan has been automatically extended for six months, through May 2, 2012. This automatic extension includes individuals who are now applying for TPS under the designation of South Sudan but were granted TPS and were issued an EAD under the Sudan designation.

The notice designating the Republic of South Sudan is available at http://www.gpo.gov/fdsys/pkg/FR-2011-10-13/pdf/2011-26537.pdf. The notice announcing the extension of the designation of Sudan for TPS and automatic extension of EADs for Sudanese TPS beneficiaries is available at http://www.gpo.gov/fdsys/pkg/FR-2011-10-13/pdf/2011-26538.pdf.

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11. ABIL Global: Italy Requires Fingerprints for North Africans

Italy now requires fingerprints for short-term visas (business and tourism) for North Africans, as part of a larger European Union effort.

As of October 11, 2011, the Italian consulates in Algeria, Egypt, Libya, Mauritania, Morocco and Tunisia now require fingerprints for individuals applying for short-term Schengen visas (maximum of 90 days for business and tourism). This is intended to improve border control and to expedite the issuance of future visas to those already registered in the Schengen Visa Information System (VIS).

It is expected that this requirement will be enforced in other Italian consulates in the Schengen Area within the next two years. Other European Union (EU) consulates are following suit, as part of a larger EU effort to include fingerprints of visa applicants from North African countries in a database that connects all 25 countries in the Schengen “border-free” zone.

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12. 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.

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

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13. Member News

Laura Danielson was mentioned in an article in Foreign Policy on Americans joining foreign wars. The article is available at http://www.foreignpolicy.com/articles/2011/09/02/is_it_legal_for_americans_to_fight_in_another_country_s_army.

Cyrus Mehta has published several new blog entries. “BALCA Says There Is No Need To List Every Benefit of Employment in Job Advertisements” is available at http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus2011102243917. “Prosecutorial Discretion and the ‘Criminal Alien’ ” is available at http://www.cyrusmehta.com/news.aspx?SubIdx=ocyrus201110161228.

Mr. Mehta also authored “Due Diligence Considerations for Companies Contracting With Vendor Service Providers,” which was published in the October 2011 edition of New Jersey Lawyer. The article is available at http://www.scribd.com/doc/70961358/Due-Diligence-Considerations-for-Companies-Contracting-With-Vendor-Service-Providers.

Angelo Paparelli was recently quoted in the Daily Journal in an article about the Obama administration’s enforcement efforts and the record numbers of removals. Mr. Paparelli said the record-setting numbers “underscore that Secure Communities is overkill.” Also, in another article discussing a drop in immigration legal work due to the decline in hiring of foreign workers, Mr. Paparelli said, “The burden of demands made by the government for these visas is growing,” and he noted that “[t]he typical work that these employment-based lawyers provided and earned a living on just isn’t there for them anymore.” See http://www.seyfarth.com/index.cfm/fuseaction/news_pub.news_pub_detail/object_id/bd2b30d1-4a41-4809-9808-453a1d4828d9/AngeloPaparelliQuotedintheDailyJournalHiringforeignworkersprovesmoretime-consumingcostly.cfm.

Mr. Paparelli also co-authored an article, “Intubation and Incubation: Remedies for an Ailing Immigration Agency.” See http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202520113033&Intubation_and_Incubation_Remedies_for_an_Ailing_Immigration_Agency&slreturn=1.

H. Ronald Klasko and Stephen Yale-Loehr spoke at an American Immigration Lawyers Association EB-5 conference on October 21, 2011, in San Antonio, Texas. Mr. Klasko spoke on a panel, “Winning the End Game: Removal of Conditions,” and Mr. Yale-Loehr spoke on a panel, “Concentrating EB-5 Investment Impact—Creating and Representing Regional Centers.”

Free webinars on a variety of immigration law-related topics are available at http://www.wolfsdorf.com/freewebinar.

Mr. Yale-Loehr will speak on two panels at the NAFSA Region X conference on November 7, 2011, at the Sagamore Hotel in Bolton Landing, New York. The two panels are “Have Visa (or Not), Will Travel” and “Green is the Color of Hope: Navigating the Terrain of Permanent Residency.” More information about the conference is available at http://www.nafsa.org/nafsaregions/default.aspx?id=21748.

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14. Government Agency Links

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

USCIS Service Center processing times online

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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