News from the Alliance of Business Immigration Lawyers Vol. 7, No. 11A • November 01, 2011
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.
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.
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/.
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.
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
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.
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.
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.
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.
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.
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.
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.
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