News from the Alliance of Business Immigration Lawyers Vol. 7, No. 11B • November 15, 2011
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
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.
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.
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.
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.
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 email@example.com 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.
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/.
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.
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.
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.
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?”
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