AUSTRALIA: Reforms to Permanent Entry Employer-Nominated Program Introduced on July 1

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The Australian government has announced reforms to the permanent entry employer-nominated visa program to be introduced on July 1, 2012.

Key reforms include:

  • removing the existing distinction between applications with respect to whether they are made by applicants who are in or out of Australia
  • replacing the current requirement of paying nominated permanent resident applicants at least the Minimum Salary Level (MSL) of $67,556 for IT-related occupations and $49,330 for other occupations with the need to pay the market salary
  • raising the upper age limit to less than 50 years; exceptions will apply for certain occupations and persons working in Australia for more than four years who were paid more than A$118,100 as of July 1, 2011
  • increasing the English-language IELTS test result to 6 for all applicants except those already in Australia and working for their nominating employer for the last two years; exceptions will apply for certain occupations, and nationals of five English-speaking countries (United Kingdom, United States, Canada, Ireland, and New Zealand)
  • introducing a single consolidated nominated occupation list (NOL) to replace the current sponsored employee 457 occupation list, the Employer Nomination Skilled Occupation List, and the State and Territory Sponsored Occupation List
  • integrating the permanent employer nominated visas with the skilled independent migrant selection model SkillSelect to be launched on July 1, 2012. Intending migrants who complete an Expression of Interest in migrating to Australia in SkillSelect can also indicate whether they are prepared to be sponsored for temporary residence or nominated for permanent residence by an employer.

News from the Alliance of Business Immigration Lawyers Vol. 8, No. 5B • May 15, 2012

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Headlines:

1. India, China EB-2 Category Unavailable for Remainder of FY 2012 – The Department of State’s Visa Office has announced that this category is now “Unavailable” for both India and China and will remain so for the remainder of fiscal year 2012.

2. NLRB Issues Guidance on Compliance Cases – Among other things, a respondent may not use the compliance phase as a means to fish for disabling employee conduct under IRCA.

3. Labor Dept. Says Preliminary Injunction on H-2B Final Rule Calls Into Doubt Its Authority – The Department said the preliminary injunction calls into doubt the authority of the Department of Labor to fulfill its responsibilities under the INA and Department of Homeland Security regulations to issue labor certifications for H-2B workers.

4. Put Up or Shut Up: EEOC Ordered To Reveal Immigration Status or Abandon Claims – The EEOC must either reveal the immigration status of women it is representing in a harassment lawsuit or abandon recovery of monetary damages for the claimants who will not disclose their status.

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

6. Member News – Member News

7. Government Agency Links – Government Agency Links

Details:

1. India, China EB-2 Category Unavailable for Remainder of FY 2012

In May, as predicted, the India and China priority dates in the employment-based second (EB-2) green card category retrogressed dramatically, from May 1, 2010, to August 15, 2007. The EB-2 category is for people with advanced degrees or who have exceptional ability. The Department of State’s Visa Office has announced that this category is now “Unavailable” for both India and China and will remain so for the remainder of fiscal year 2012.

If an I-485 Application for Adjustment of Status was filed while the person’s priority date was current, it will remain pending until the priority date is current again. Because the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, while the priority date is unavailable.

The Visa Office includes the following information in the June Visa Bulletin:

Despite the retrogression of the China and India Employment Second preference cut-off date to August 15, 2007, demand for numbers by applicants with priority dates earlier than that date remained excessive. Such demand is primarily based on cases which had originally been filed with the U.S. Citizenship and Immigration Services (USCIS) for adjustment of status in the Employment Third preference category, and are now eligible to be upgraded to Employment Second preference status. The potential amount of such “upgrade” demand is not currently being reported, but it was evident that the continued availability of Employment Second preference numbers for countries other than China and India was being jeopardized. Therefore, it was necessary to make the China and India Employment Second preference category “Unavailable” in early April, and it will remain so for the remainder of FY 2012.

Numbers will once again be available for China and India Employment Second preference cases beginning October 1, 2012 under the FY-2013 annual numerical limitations. Every effort will be made to return the China and India Employment Second preference cut-off date to the May 1, 2010 date which had been reached in April 2012. Readers should be advised that it is impossible to accurately estimate how long that may take, but current indications are that it would definitely not occur before spring 2013.

USCIS has indicated that it will continue accepting China and India Employment Second preference I-485 filings during May, based on the originally announced May cut-off date.

JUNE BULLETIN. Contact your ABIL attorney for assistance.

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2. NLRB Issues Guidance on Compliance Cases

The National Labor Relations Board (NLRB) issued guidance on May 4, 2012, to regions for investigating and litigating compliance issues under Flaum Appetizing Corp., 357 NLRB No. 162 (Dec. 30, 2011). The memo acknowledges that the Supreme Court in Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) concluded that the Immigration Reform and Control Act of 1986 (IRCA) bars the NLRB from awarding backpay to any individual who was not legally authorized to work in the United States during the backpay period. However, the NLRB noted that an employee’s work authorization status generally is irrelevant to the merits of an unfair labor practice compliant; it only becomes a triable issue at the compliance stage. Nonetheless, the NLRB memo states, a respondent “may not use the compliance phase as a means to fish for disabling employee conduct under IRCA, i.e., no legal authorization for its employees to work in the United States.”

In Flaum, the NLRB concluded that “IRCA does not require that the Board permit baseless inquiry into immigration status in every case in which reinstatement or backpay is granted.” In the compliance phase, the NLRB memo says, regions should demand a full accounting of evidence upon which a respondent intends to rely to assert that employees are ineligible for backpay under Hoffman Plastics.

The NLRB memo also notes, among other things, that before Flaum, an employer was permitted to require discriminatees to complete the appropriate portion of the I-9 employment authorization verification form and submit appropriate documentation as a condition of reinstatement. “A reinstatement offer will no longer be considered valid if it is conditioned on re-verification of employment status,” the NLRB memo states.

MEMO

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3. Labor Dept. Says Preliminary Injunction on H-2B Final Rule Calls Into Doubt Its Authority

On May 7, 2012, the Office of Foreign Labor Certification of the Department of Labor’s Employment and Training Administration released the following statement regarding the preliminary injunction of the H-2B final rule by the U.S. District Court for the Northern District of Florida:

On April 26, 2012, the Temporary Non-Agricultural Employment of H-2B Aliens in the United States, Final Rule, 77 FR 10038, Feb. 21, 2012 was preliminarily enjoined by the U.S. District Court for Northern District of Florida, Pensacola Division in Bayou Lawn & Landscape Services, et al. v. Hilda L. Solis, et al., 12-cv-00183-RV-CJK, and was never implemented. Therefore, for the present time employers should file their H-2B labor certification applications under the Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 FR 78020, Dec. 19, 2008. However, please be aware that this preliminary injunction necessarily calls into doubt the underlying authority of the Department of Labor to fulfill its responsibilities under the Immigration and Nationality Act and Department of Homeland Security regulations to issue the labor certifications that are a necessary predicate for the admission of H-2B workers.

STATEMENT

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4. Put Up or Shut Up: EEOC Ordered To Reveal Immigration Status or Abandon Claims

On May 7, 2012, Judge Lonny R. Suko of the U.S. District Court for the Eastern District of Washington told the Equal Employment Opportunity Commission (EEOC) that it had to either reveal the immigration status of women it is representing in a harassment lawsuit or abandon recovery of monetary damages for the claimants who will not disclose their status. The EEOC had objected on Fifth Amendment grounds, and sought a protective order. EEOC v. Evans Fruit Co., Inc., Case No. CV-10-3033 LRS (E.D. Wash.). The court noted that even if an assertion of Fifth Amendment privileges is proper, “there are consequences.” The court said “it should have been apparent to the EEOC that some of the claimants now had a choice to make: either continue to be part of the litigation and provide answers in discovery subject to the protective order, or decline to…be part of the litigation.”
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5. New Publications and Items of Interest

Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, to be released on May 31, 2012, by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

This comprehensive guide is designed to be used by:

  • Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
  • Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
  • Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

  • An overview of the immigration law requirements and procedures for over 20 countries;
  • Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
  • A general overview of the appropriate options for a particular employee; and
  • Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The book will be discounted 20% for pre-orders through May 31. ORDER HERE. The discount code is ABIL20 (enter this code at checkout). International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.hahn@lexisnexis.com.

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.

For more information or to order, visit Green Card Stories.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available HERE.

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6. Member News

Laura Danielson has published several new blog entries: “Say It Ain’t So, Sheriff Joe” and “A Lot of People Are Dying to Come to the U.S.”

Ms. Danielson also wrote an article on immigration policy and reform that was published in her county bar magazine. The article also quotes Charles Kuck. It is available HERE.

Charles Kuck was quoted or mentioned in several publications, including the Atlanta Journal Constitution and here, CBS Local, and The Republic.

Robert Loughran will be speaking on perfecting EB-5 regional center petitions at an EB-5 seminar sponsored by ilw.com in Nashville, Tennessee, on June 13, 2012. In addition:

FosterQuan held a seminar, “Pasaporte al Exito: Estrategias Claves Inmigratorias de los EE. UU. Para el 2012 y en Adelante,” which focused on business opportunities and procedures for Mexican entrepreneurs looking to invest in the United States. This seminar was held in Harlingen, Texas, on February 7, 2012, and in Rio Grande City, Texas, on February 8, 2012.

FosterQuan presented at The Inter-Connect Business Expo’s “Orientación y Servicios en Nuestra Comunidad” seminar, which focused on business opportunities and procedures for foreign nationals looking to invest in the United States. This seminar was held in The Woodlands, Texas, on April 10, 2012.

FosterQuan attorneys spoke at a seminar, “McAllen’s Mexican Investors Summit,” which focused on immigration law for Mexican nationals. The seminar was held in McAllen, Texas, on May 16, 2012.

FosterQuan attorneys have been invited to speak at the 2nd Annual Select USA Seminar series, “How to Invest in the U.S.,” which will focus on business opportunities and procedures for Mexican entrepreneurs looking to invest in the United States. The seminar will be held in Mexico City on June 5, 2012, in Guadalajara on June 6, 2012, and in Monterey on June 7, 2012.

FosterQuan recently advised a major technology industry entrepreneur, partnering with the City of Houston and the Greater Houston Partnership (the largest chamber of commerce in the greater Houston metropolitan area), in the formation of a new EB-5 regional center for the Houston region. The Lone Star Regional Center will initially focus on investments in new energy technologies and hotel and leisure industry projects . FosterQuan advised the Lone Star regional center when the regulatory landscape surrounding EB-5 regional centers was in a state of continual change.

Initially filed well before the promulgation of the I-924 form, the application was nevertheless caught up in the maelstrom of USCIS requests for evidence related to I-924-specific information. Most interestingly, USCIS raised some novel issues in a Notice of Intent to Deny. USCIS argued that the project business plans for the hypothetical or sample projects included in the application lacked detail required for a business plan pursuant to Matter of Ho. USCIS further alleged that the applicant did not provide evidence that the sample projects fell within a Targeted Employment Area (TEA). Finally, USCIS challenged the North American Industry Classification System (NAICS) codes selected for the energy project.

FosterQuan’s successful response to these challenges drew a distinction between the Matter of Ho requirements for business plans for actual projects, and the requirements for a sample business plan, which in essence should provide the same level of specificity. Concerning the TEA analysis, FosterQuan’s successful response further directed USCIS to review and apply its own guidance from the Neufeld Memorandum of December 2009 and the Adjudicator’s Field Manual, which confirm that USCIS makes TEA determinations only at the time that an I-526 immigrant petition is filed – not at the time that an I-924 application for a regional center is filed.

Finally, in relation to the issues raised by NAICS codes, the USCIS analysis revealed the difficulties in selecting NAICS codes for novel industries. Through detailed background evidence, USCIS accepted the original NAICS codes because they were the most appropriate among the available industry code options.

The Lone Star Regional Center was approved by USCIS in May 2012 and should begin operations shortly.

Cyrus Mehta has co-authored a new blog entry. “Hidden Treasure: How States That Want Immigrants Can Take Advantage of Arizona v. USA.”

Mr. Mehta presented on “Employment-Based Immigration Basics” at the New York State Bar Immigration Law Update in New York City on May 8-9, 2012. For more information, see http://bit.ly/LHleNu. He also presented on “Intra-Company Transfer Visas: L-1s for Experienced Practitioners” at a Web seminar on May 1, 2012, sponsored by the American Immigration Lawyers Association.

Angelo Paparelli has published a new blog entry. “Instruct Us Again on the Immigration Rules.”

The Wolfsdorf Immigration Law Group is presenting several free webinars. The upcoming topic is Investors/Traders (E Visas), to be held Thursday, May 10, 2012. For more information or to register, see HERE.

Stephen Yale-Loehr will speak on I-829 issues at the ILW EB-5 seminar in Nashville, Tennessee, on June 13, 2012.

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7. Government Agency Links

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

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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INDIA: Extended Tourist Visa on Arrival Policy

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The Ministry of External Affairs (“MEA”) in India has extended the Tourist Visa on Arrival policy to residents of France, Germany and Russia. India currently issues Visa on Arrival to 11 countries namely Japan, Indonesia, the Philippines, Cambodia, Laos, Vietnam, Singapore, Myanmar, Finland, Luxembourg and New Zealand. After the MEA’s nod, the proposal has been sent to the Union home ministry as the final tourist visa on arrival clearing authority is its Bureau of Immigration.

Read more in the Economic Times article, “Visa on Arrival List Expanded to Woo Tourists”.

EB-5 & Other Investor News from the Alliance of Business Immigration Lawyers Vol. 2, No. 2 • May 01, 2012

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Headlines:

1. USCIS Creates Controversy Over Tenant-Occupancy Economic Model – USCIS issued a memo in February questioning certain EB-5 projects that use a tenant-occupancy economic model. USCIS Director Alejandro Mayorkas held a call on April 27 on the tenant-occupancy economic model and related RFEs. USCIS issued guidance on May 8 on what deference it would give prior EB-5 adjudications that involved tenant-occupancy issues.

2. USCIS EB-5 Stakeholders Meeting Provides Little New Information – An EB-5 stakeholder meeting on May 1 provided few new details on how the agency plans to improve processing times.3. EB-5 Investor Lawsuit and Counterclaim Dismissed; South Dakota Beef Facility Moves Forward – The processing plant is close to beginning operations after more than six years battling a variety of issues.4. Michigan Touts EB-5 Program To Revitalize the State – The “Global Michigan Initiative” includes public and private organizations’ efforts to attract new immigrants and investors, retain those who obtain advanced degrees from Michigan universities, and find those who are already in Michigan but underutilized.5. New Publications and Items of Interest – New Publications and Items of Interest6. Member News – Member News7. EB-5 Government Agency Links – EB-5 Government Agency Links

Details:
1. USCIS Creates Controversy Over Tenant-Occupancy Economic Model

U.S. Citizenship and Immigration Services (USCIS) created a new controversy in the EB-5 immigrant investor world when it released a memorandum on February 17, 2012, concerning what it calls the “tenant-occupancy” economic methodology. According to USCIS, the tenant-occupancy methodology seeks credit for job creation by independent tenant businesses that lease space in buildings developed with EB-5 funding. According to a standard request for evidence (RFE) that many EB-5 regional center applicants received after issuance of the memo:

USCIS has concerns that the attribution of certain direct jobs to the EB-5 investment may not be based on reasonable economic methodologies, and therefore do not demonstrate in “verifiable detail” that the requisite jobs will be created. Rather, contemporary economic methodologies appear to indicate that such jobs would more appropriately be attributed to the tenants themselves and not to the regional center because the demand for labor precedes the decision about where to house that labor as a general economic principle. For example, if a federal agency determined that additional federal employees needed to be hired to fulfill the agency’s mission at a particular location, the federal agency would seek to hire the requisite number of employees and as part of that process, would also take steps to lease the appropriate physical premises to provide sufficient workspace for the new hires. In this instance, it is the federal agency that is creating the jobs through its decision to hire more employees, not the landlord who will ultimately lease the workspace to the federal agency.

USCIS has issued over 80 RFEs concerning the tenant-occupancy methodology in recent months. Some regional centers have complained that the new memo constitutes a change in policy and that in any event, USCIS should not apply its new interpretation retroactively to already approved regional centers or EB-5 petitions that were filed before the February 17 memo.

In an effort to explain its position, USCIS Director Alejandro Mayorkas held a conference call on April 27, 2012, on the tenant-occupancy economic model and related RFEs. According to an unofficial transcript of his comments, Director Mayorkas said there would be a follow-up engagement on this topic and that USCIS plans to release a tip sheet with economic analysis guidance. He noted that USCIS has hired full-time economists and business analysts to improve the quality of the agency’s work and the analysis of EB-5 petitions.

Director Mayorkas noted that USCIS decisions on the economic methodology presented in EB-5 cases are “very fact-specific.” He said that USCIS has a “deference policy” and is “communicating to our adjudicators that they are to accord deference to prior adjudications.” He noted that USCIS’s adjudicators “should rely on a previous determination that the economic methodology is reasonable when [it] is presented to us in a later proceeding based on materially similar facts.” For example, he said, if USCIS approved an I-924 regional center application based on a specifically identified project, including the specific locations and industries involved, the agency would not revisit the determination that the economic model and underlying business plan were reasonable when adjudicating related I-526 petitions, I-485 applications, or I-829 petitions. If USCIS approved an I-526 petition for an immigrant investor based on a specifically identified project not associated with a regional center, the agency would not revisit the determination that the business plan was reasonable when adjudicating the investor’s related I-485 or I-829 petition, he said. If the facts underlying the application of the economic methodology have materially changed, however, USCIS would conduct a fresh review of the new facts “to determine whether the petitioner or applicant has complied with the requirements of the EB-5 program, including the job creation requirement.”

On May 8, 2012, USCIS provided guidance on what deference it would give prior EB-5 adjudications that involved tenant-occupancy issues. The memorandum stated that in general, “a prior favorable decision will be relied upon in later proceedings unless the facts underlying the prior decision have materially changed, there is evidence of fraud or misrepresentation in the record of proceedings, or the previously favorable decision is determined to be legally deficient.”

USCIS cautioned that the economic methodology presented in an EB-5 case is “very fact-specific.” USCIS adjudicators “should rely on a previous determination that the economic methodology is reasonable when the methodology is presented to us in a later proceeding based on materially similar facts.” “If, however, the facts underlying application of the economic methodology have materially changed,” USCIS “will conduct a fresh review of the new facts to determine whether the petitioner or applicant has complied with the requirements of the EB-5 program, including the job creation requirement.”

On the previous EB-5 stakeholders engagement call in January, USCIS had acknowledged that many regional center applications were being held up at headquarters pending resolution of economic methodology issues. On that earlier call, USCIS said it was analyzing all the I-924A forms submitted by regional centers and would draft a report that includes regional center-specific information sometime this year. The agency also noted that it would revise the I-924 form to provide greater consistency.

The February 17 memo on tenant-occupancy methodology issues is HERE. An unofficial transcript of Director Mayorkas’ April 27 comments is available HERE. The May 8 USCIS memorandum is available HERE.

 

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2. USCIS EB-5 Stakeholders Meeting Provides Little New Information

U.S. Citizenship and Immigration Services (USCIS) held a quarterly EB-5 stakeholders meeting on May 1, 2012. Over 250 people attended in person, and over 300 listened by phone. Despite the interest in the meeting, USCIS did not provide much information. For example:

  • USCIS did not allow questions about and did not comment on the “tenant-occupancy” methodology issue, stating that the issue is under review. See the prior article. USCIS confirmed that applicants who were issued a “tenant-occupancy” RFE will be contacted with a notice that their deadline for response will be extended. However, there were no promises of forthcoming guidance related to the RFE.
  • USCIS did not answer stakeholder questions that had been submitted before the meeting.
  • USCIS expressed no specific plan or goals to improve processing times, which have slowed in recent months.
  • USCIS expressed no specific plan or goals to improve communication through the public engagement mailbox or through the I-924 applicant e-mail lines.
  • USCIS expressed no specific plan or goals to communicate expectations and standards in a more open manner.
  • USCIS suggested that a new draft of its “foundational” EB-5 policy memo would be emerging “in a few weeks,” and that the agency is not currently deferring to the draft memo or implementing the “material change” guidance included in the current draft.
  • USCIS refused to say how it would handle pending EB-5 petitions if Congress fails to extend the EB-5 pilot program after September 30, 2012. USCIS said it would address this issue at its July EB-5 stakeholders meeting.

According to the latest EB-5 program statistics based on preliminary data for the second quarter of fiscal year (FY) 2012, USCIS received 2,771 I-526 (Immigrant Petition by Alien Entrepreneur) petitions and had approved 2,101 and denied 384 so far. This was an 85 percent approval rating, compared to an 81 percent approval rating for all of FY 2011 and an 89 percent approval rating for all of FY 2010. As of the second quarter of FY 2012, USCIS had received 375 I-829 (Petition by Entrepreneur to Remove Conditions) petitions and had approved 522 and denied 24 so far. This was a 96 percent approval rating, matching a 96 percent approval rating for all of FY 2011 and exceeding an 83 percent approval rating for FY 2010.

USCIS also noted that as of March 31, 2012, processing times were reaching 6 months for an I-924 initial application (target is 4 months), and were reaching 8 months for an I-924 amendment application (target is 4 months). USCIS recently approved four new regional centers: the California Regional Center, LLC; Las Vegas EB-5 Immigration, LLC; New York City Real Estate Regional Center, LLC; and Lone Star Regional Center, LLC. The full list of RCs by state is available HERE.

The next USCIS stakeholder engagement meetings are scheduled for July 26, 2012 (regional center discussion) and October 23, 2012 (general EB-5 discussion).

Additional details on the engagement meetings and the latest statistics.

Recording of the stakeholder engagement.

Latest statistics. are available HERE.

Latest EB-5 regional center statistics and information page.

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3. EB-5 Investor Lawsuit and Counterclaim Dismissed; South Dakota Beef Facility Moves Forward

A lawsuit that threatened construction of a Northern Beef Packers cattle processing facility in South Dakota was dismissed recently, along with a counterclaim. The lawsuit alleged that investors did not receive crucial facts about the project and were not included in key decisions as agreed upon. The processing plant is now close to beginning operations after more than six years battling a variety of issues. The project, which attracted Korean investors in 2009, has been delayed by lawsuits, liens, tax problems, flooding, local opposition, and other issues.

Northern Beef Packers is owned 41 percent by Oshik Song and 69 other Koreans, who each invested $500,000 or more via the EB-5 program. The project also borrowed $30 million under a private loan arrangement and will receive millions more in loans and financial help, once it starts processing cattle, from a state economic development authority and the U.S. Department of Agriculture Rural Development.

Initial complaint that was dismissed

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4. Michigan Touts EB-5 Program To Revitalize the State

Michigan’s Governor Rick Snyder has been working hard to attract foreign investors and high-skilled talent to his state. The “Global Michigan Initiative” includes public and private organizations’ efforts to attract new immigrants and investors, retain those who obtain advanced degrees from Michigan universities, and find those who are already in Michigan but underutilized.

Michigan’s Economic Development Corporation has noted that although the EB-5 program falls under the purview of the federal government, the state of Michigan plays a role in identifying and designating targeted employment areas (TEAs) based on high unemployment rates. At the request of an applicant, the state may determine whether a specific metropolitan statistical area or county is a TEA. Among other qualifications, the area in question must have an average unemployment rate of 150 percent of the national average.

For more information on Michigan’s EB-5 and related efforts, see HERE.

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5. New Publications and Items of Interest

Entrepreneurs in Residence executive summary. U.S. Citizenship and Immigration Services (USCIS) has released an executive summary of its information summit held in February 2012 on the “Entrepreneurs in Residence” initiative. The summary discusses the panel discussion and breakout sessions held, and emerging themes, including demonstrating the legitimacy of startups through investments, understanding the organizational structure of a startup, defining specialty occupations, training and culture, and requests for evidence. Stakeholders interested in sharing additional feedback and concrete suggestions with the USCIS Tactical Team can e-mail public.engagement@dhs.gov with the subject line “Entrepreneurs in Residence.” Executive summary.

New York Times op-ed. An op-ed by Ann Lee published in the April 15, 2012, edition of the New York Times, “Making Visas-for-Dollars Work,” notes that the EB-5 program brought in approximately $1 billion in investment to the United States over the last fiscal year. The op-ed also discusses the risks in the program and notes a lack of understanding among government administrators of more sophisticated business models that may have a greater chance of generating profits and jobs than the simpler business models that are likely to receive approval.

Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, to be released on May 31, 2012, by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

This comprehensive guide is designed to be used by:

  • Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
  • Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
  • Attorneys interested in expanding their practice to include global business immigration services

This publication provides:

  • An overview of the immigration law requirements and procedures for over 20 countries;
  • Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
  • A general overview of the appropriate options for a particular employee; and
  • Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The book will be discounted 20% for pre-orders through May 31. ORDER HERE. The discount code is ABIL20 (enter this code at checkout). International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.hahn@lexisnexis.com.

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.

For more information or to order, visit Green Card Stories.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available HERE.

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6. Member News

Mark Ivener and Charles Kuck were quoted in the February 3-9, 2012, edition of New Orleans CityBusiness, in an article on EB-5 investors, “Lawmaker Wants Foreign Investment for Terminal.” In an article about Louisiana state senator A.G. Crowe wanting to use EB-5 investment funds to finance the Louisiana International Gulf Transfer Terminal, currently an idea for a port at the mouth of the Mississippi River, Mr. Kuck said the EB-5 program is ill-suited for such massive, unfunded ventures. “Some people view this EB-5 program as this limitless supply of money from naïve foreign investors. I have frankly yet to meet investors willing to say ‘I’ll be the first investor in your program and hopefully two years from now you will have actually done your deal and created jobs.” He said EB-5 investors calculate their risk and they are leery of being guinea pigs for projects lacking seed funding. Although the article notes that there are currently 194 regional centers, Mr. Kuck said there are “no more than 10 or a dozen that any rational person would recommend” to EB-5 investors. Mr. Ivener commented on potential conflicts of interest that can result if brokers represent regional centers to which they are steering investors. Mr. Ivener noted that it is common to represent both types of clients separately.

Ron Klasko was a VIP speaker at the “Invest in America 2012” Summit and Exhibition held in March 2012 in Shanghai, China. The second annual event drew an estimated 1,000 potential Chinese investors and U.S. developers to Shanghai to learn about the investor visa program. He addressed the attendees on performing immigration due diligence on potential investment projects.

Robert Loughran will be speaking on perfecting EB-5 regional center petitions at an EB-5 seminar sponsored by ilw.com in Nashville, Tennessee, on June 13, 2012. In addition:

FosterQuan held a seminar, “Pasaporte al Exito: Estrategias Claves Inmigratorias de los EE. UU. Para el 2012 y en Adelante,” which focused on business opportunities and procedures for Mexican entrepreneurs looking to invest in the United States. This seminar was held in Harlingen, Texas, on February 7, 2012, and in Rio Grande City, Texas, on February 8, 2012.

FosterQuan presented at The Inter-Connect Business Expo’s “Orientación y Servicios en Nuestra Comunidad” seminar, which focused on business opportunities and procedures for foreign nationals looking to invest in the United States. This seminar was held in The Woodlands, Texas, on April 10, 2012.

FosterQuan attorneys spoke at a seminar, “McAllen’s Mexican Investors Summit,” which focused on immigration law for Mexican nationals. The seminar was held in McAllen, Texas, on May 16, 2012.

FosterQuan attorneys have been invited to speak at the 2nd Annual Select USA Seminar series, “How to Invest in the U.S.,” which will focus on business opportunities and procedures for Mexican entrepreneurs looking to invest in the United States. The seminar will be held in Mexico City on June 5, 2012, in Guadalajara on June 6, 2012, and in Monterey on June 7, 2012.

FosterQuan recently advised a major technology industry entrepreneur, partnering with the City of Houston and the Greater Houston Partnership (the largest chamber of commerce in the greater Houston metropolitan area), in the formation of a new EB-5 regional center for the Houston region. The Lone Star Regional Center will initially focus on investments in new energy technologies and hotel and leisure industry projects . FosterQuan advised the Lone Star regional center when the regulatory landscape surrounding EB-5 regional centers was in a state of continual change.

Initially filed well before the promulgation of the I-924 form, the application was nevertheless caught up in the maelstrom of USCIS requests for evidence related to I-924-specific information. Most interestingly, USCIS raised some novel issues in a Notice of Intent to Deny. USCIS argued that the project business plans for the hypothetical or sample projects included in the application lacked detail required for a business plan pursuant to Matter of Ho. USCIS further alleged that the applicant did not provide evidence that the sample projects fell within a Targeted Employment Area (TEA). Finally, USCIS challenged the North American Industry Classification System (NAICS) codes selected for the energy project.

FosterQuan’s successful response to these challenges drew a distinction between the Matter of Ho requirements for business plans for actual projects, and the requirements for a sample business plan, which in essence should provide the same level of specificity. Concerning the TEA analysis, FosterQuan’s successful response further directed USCIS to review and apply its own guidance from the Neufeld Memorandum of December 2009 and the Adjudicator’s Field Manual, which confirm that USCIS makes TEA determinations only at the time that an I-526 immigrant petition is filed – not at the time that an I-924 application for a regional center is filed.

Finally, in relation to the issues raised by NAICS codes, the USCIS analysis revealed the difficulties in selecting NAICS codes for novel industries. Through detailed background evidence, USCIS accepted the original NAICS codes because they were the most appropriate among the available industry code options.

The Lone Star Regional Center was approved by USCIS in May 2012 and should begin operations shortly.

Angelo Paparelli has published “Immigration-Agency Lawbreaking Revealed: USCIS’s EB-5 ‘Tenant-Occupancy’ Scandal.” For more on this topic, see the first article in this issue, above.

The Wolfsdorf Immigration Law Group is presenting several free webinars. The upcoming topic is Investors/Traders (E Visas), to be held Thursday, May 10, 2012. For more information or to register, see HERE.

Stephen Yale-Loehr and Mr. Klasko spoke at an EB-5 international investment and economic development forum sponsored by IIUSA: Association to Invest in the USA on April 30, 2012, in Laguna Hills, California. Mr. Yale-Loehr spoke on I-829 EB-5 petitions and Mr. Klasko spoke on the prospects for an extension to the EB-5 pilot program in Congress. Mr. Yale-Loehr will speak on I-829 issues at the ILW EB-5 seminar in Nashville, Tennessee, on June 13, 2012.

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7. EB-5 Government Agency Links

USCIS Web Page on EB-5 Immigrant InvestorsUSCIS Policy and Procedural Memoranda on EB-5 Investors

Immigrant Investor Regional Centers List

Form I-526, Immigrant Petition by Alien Entrepreneur

Form I-829, Petition by Entrepreneur to Remove Conditions

Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program

Form I-924A, Supplement to Form I-924

News from the Alliance of Business Immigration Lawyers Vol. 8, No. 5A • May 01, 2012

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Headlines:

1. FY 2013 H-1B Petitions Coming In Fast – Over 25,000 cap-subject H-1B petitions have been filed as of April 20, 2012.

2. India, China EB-2 Category Retrogresses Dramatically – As predicted for May, the India and China EB-2 priority dates have retrogressed dramatically, from May 1, 2010, to August 15, 2007.

3. DOL Changes Effective Date of 2012 H-2B Final Rule; Preliminary Injunction Granted – On April 26, 2012, a federal judge granted a preliminary injunction, applicable nationwide, against implementing the new H-2B program rule for 60 days.

4. DOL Revises H-2A and H-2B Forms – All H-2A and H-2B applications must be submitted using the revised form; Appendix A.2 remains unaffected.

5. DOS Beefs Up Consular Services in Brazil, Plans Two New Consulates – To address immediate growth in demand, the Department of State is sending dozens of consular officers to Brazilian posts to adjudicate visa applications.

6. ABIL Global: Mexico – A new Mexican immigration law will enter into force this year, after 40 years under the current law.

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

8. Member News – Member News

9. Government Agency Links – Government Agency Links

Details:

1. FY 2013 H-1B Petitions Coming In Fast

According to U.S. Citizenship and Immigration Services, over 25,000 cap-subject H-1B petitions have been filed as of April 20, 2012. If this keeps up, the H-1B cap could be reached quickly.

The Alliance of Business Immigration Lawyers (ABIL) recommends that employers file early and allow time for the labor condition application process. Contact your ABIL attorney now for guidance and help with the process.

Latest statistics.

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2. India, China EB-2 Category Retrogresses Dramatically

As predicted for May, the India and China EB-2 priority dates have retrogressed dramatically, from May 1, 2010, to August 15, 2007. Priority dates for those countries are not expected to advance again until October 1, 2012, at the earliest, when the new federal fiscal year begins.

If an I-485 Application for Adjustment of Status was filed while the person’s priority date was current, it will remain pending until the priority date is current again. Because the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, while the priority date is retrogressed.

The May bulletin from the Department of State’s Visa Office. Contact your ABIL attorney for assistance.

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3. DOL Changes Effective Date of 2012 H-2B Final Rule; Preliminary Injunction Granted

On February 21, 2012, the Department of Labor published a final rule amending the H-2B program regulations and providing for an effective date of April 23, 2012, which is 60 days after the date of publication of the final rule. The Department clarified that the final rule would not be operative until April 27, 2012, which is 60 days after February 27, 2012, the date on which the rule was reported to Congress, and the earliest date on which the rule can become operative by law. An injunction has temporarily blocked implementation, however.

The Department said that applications postmarked on or after April 27, 2012, would be adjudicated in accordance with the requirements described in the final rule. Any application filed under the current regulation that is postmarked on or after April 27, 2012, will be returned, and the employer (and its agent or attorney) informed of the need to file a new application in accordance with the provisions of the new H-2B final rule.

The Department also noted that employers who file H-2B applications with a start date of need before October 1, 2013, do not need to obtain the pre-approved H-2B registration under 20 CFR 655.15, and the Department will continue to adjudicate temporary need by reviewing the employer’s statement of temporary need in Section B of the ETA Form 9142. Employers with H-2B applications postmarked on or after April 27, 2012, with a start date of need on or after October 1, 2013, must comply with all the requirements contained in the registration process unless the Office of Foreign Labor Certification publishes additional guidance in the Federal Register.

Meanwhile, on April 26, 2012, Judge M. Casey Rogers of the Northern District of Florida granted a preliminary injunction, applicable nationwide, against implementing the new program rule for 60 days. The U.S. Chamber of Commerce and others had filed suit on behalf of landscaping and forestry businesses in the U.S. District Court in Pensacola, Florida, arguing that the Department of Labor overstepped its authority by requiring companies to provide immigrant workers hired for low-skilled jobs wage guarantees and travel reimbursements. The Chamber said that such policies will drive up costs for landscape companies and should be issued by the Department of Homeland Security rather than Labor. Congress has blocked implementation of the related wage rule until September 30, 2012.

The Louisiana Department of Agriculture & Forestry released a statement from Commissioner Mike Strain noting that “[t]hese jobs are seasonal. Americans workers aren’t willing to take a seasonal job peeling crawfish or shrimp or picking crab meat for four or five months. Consequently, employers cannot fill vacancies for temporary jobs in their peeling plants, sugar mills, forests and packing factories so they have to advertise for guest workers who are willing to do those jobs.” Mr. Strain also said, “This injunction is a step in the right direction and I applaud the decision of Judge Rogers, who clearly recognized the economic harm to small business caused by the Department of Labor’s H-2B rules. However, I know employers need more than a 60-day reprieve from the detrimental effects of these H-2B rules and the H-2B changes should be permanently withdrawn or legislatively removed by Congress.” He said that many agricultural industries could be adversely affected otherwise.

A group of business advocacy associations has filed a similar suit in federal court in Philadelphia against the Department’s H-2B wage rule. The issues are whether the Department must consider employer hardship and economic concerns during regulatory formulation, and whether the Department has jurisdiction to issue H-2B regulations.

U.S. Citizenship and Immigration Services has postponed a stakeholder engagement scheduled for May 2, 2012, on “Temporary Need in the H-2B Context.” A new date has not yet been set.

Employers with questions about the H-2B process may e-mail them to H-2B.Regulation@dol.gov. The Department said it will provide responses in the form of Frequently Asked Questions (FAQs) on its website. The new guidance, issued before the preliminary injunction, is available here.

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4. DOL Revises H-2A and H-2B Forms

The Department of Labor has revised the ETA Form 9142, Appendix B.1 and associated instructions, in connection with the H-2B 2012 final rule.

Employers filing H-2B applications under the 2012 final rule are supposed to use the revised ETA Form 9142 and Appendix B.1 starting with applications postmarked on or after April 27, 2012, the Department said in an announcement. Given the federal court injunction mentioned in the prior article, however, it is unclear whether the new forms should be used after April 27.

The current ETA 9142 expired at the end of April. Therefore, all H-2A applications postmarked after April 30, 2012, must be submitted using the revised form. Appendix A.2 (H-2A only) remains unaffected and employers may continue to use it.

New Forms

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5. DOS Beefs Up Consular Services in Brazil, Plans Two New Consulates

The Department of State plans to open two new consulates in Belo Horizante and Porto Alegre, Brazil, which the White House said are important economic and cultural centers for the states of Minas Gerais and Rio Grande do Sul.

In remarks to the U.S.-Brazil Partnership for the 21st Century, Secretary of State Hillary Clinton said the openings are intended to “make it easier to get those visas, easier to travel, knock down some of the barriers that have been put up, and continue to promote people-to-people contact.” It was not clear from the official statements when the consulates would open, but reports suggested they may not begin operations until 2014.

To address immediate growth in demand, the Department of State is sending dozens of consular officers to Brazilian posts to adjudicate visa applications. Between August and December 2011, the Department sent 82 temporary duty officers to Brazil, who issued more than 135,000 visas to Brazilian travelers. The Department of State is doubling the number of diplomats performing consular work in Brazil over the next year.

The Department is also implementing a pilot program in which consular officers may waive in-person interviews for certain qualified individuals, such as those renewing their visas within 48 months of the expiration of their previous visas, and Brazilians below the age of 16 and those age 66 and older. Because security is paramount, consular officers may interview any visa applicant in any category. Nonetheless, the Department said that this program “will benefit thousands of Brazilians who want to visit the United States.”

According to a White House statement released on April 9, 2012, Brazil now ranks as the fourth largest source of overseas visitors, with 1.5 million visits to the United States in 2011, representing a 26 percent increase from 2010. Visa issuances to Brazilians tripled between 2006 and 2011, and are on pace for significant gains in 2012, the White House noted. As of February, visa processing was up 57 percent in 2012 from the same time frame in 2011. The Department of Commerce forecasted that 2.8 million Brazilians will travel to the United States in 2016, an increase of 87 percent from 2011. Visa interview wait times have dropped dramatically in Brazil, and now average just two weeks or less in Brasilia, Recife, and Rio de Janeiro, and 35 days or fewer in Sao Paulo.

Secretary Clinton’s remarks

The White House Statement

Related Fact Sheet

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6. ABIL Global: Mexico

On May 24, 2011, President Felipe Calderon of Mexico signed a new Immigration Law, which abolished and superseded the General Population Law that had been in existence for 40 years. The new law involves significant changes to the current immigration regime, although these will not become evident until implementing regulations are published.

Publication of the regulations has been considerably delayed mainly due to the pressure of several nongovernmental organizations advocating for immigrants’ human rights, along with bureaucratic delays in government offices. Regulations are expected to be published later this year.

The regulations are expected to pave the way to protect the human rights of immigrants; develop immigration processes focused mainly on demographic and immigration control issues; promote national security and economic development; and simplify immigration processes to attract foreign investors.

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7. New Publications and Items of Interest

H-1B, H-1B1, E-3 resources. The Department of Labor’s Office of Foreign Labor Certification has posted a contact list for the H-1B, H-1B1, and E-3 programs to assist employers with their applications. Helpful Resources. New FAQ on these programs.

Entrepreneurs in Residence executive summary. U.S. Citizenship and Immigration Services (USCIS) has released an executive summary of its information summit held in February 2012 on the “Entrepreneurs in Residence” initiative. The summary discusses the panel discussion and breakout sessions held, and emerging themes, including demonstrating the legitimacy of startups through investments, understanding the organizational structure of a startup, defining specialty occupations, training and culture, and requests for evidence. Stakeholders interested in sharing additional feedback and concrete suggestions with the USCIS Tactical Team can e-mail public.engagement@dhs.gov with the subject line “Entrepreneurs in Residence.” Executive Summary.

EB-5 stakeholder engagement meeting. U.S. Citizenship and Immigration Services will hold a stakeholder engagement meeting on the EB-5 immigrant investor program on July 26, 2012 (teleconference only; focus: regional centers) and October 23, 2012 (in-person and teleconference). For more information or to register, see here.

Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, to be released on May 31, 2012, by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

This comprehensive guide is designed to be used by:

  • Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
  • Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
  • Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

  • An overview of the immigration law requirements and procedures for over 20 countries;
  • Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
  • A general overview of the appropriate options for a particular employee; and
  • Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The book will be discounted 20% for pre-orders through May 31. ORDER HERE. The discount code is ABIL20 (enter this code at checkout). International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.hahn@lexisnexis.com.

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.

For more information or to order, visit Green Card Stories.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available HERE.

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8. Member News

Laura Danielson and Cyrus Mehta were quoted in an article published on April 17, 2012, by Knowledge@Wharton Today, “For High-Skilled Workers, the Visa Race is On.” Ms. Danielson noted that U.S. employers “are more confident about hiring again,” and said that studies have repeatedly confirmed that an increase in high-skilled professionals leads to net job growth for the U.S. economy. H-1B demand is surging among her clientele in the medical devices, automotive, biotechnology, and IT industries. She noted that employers looking for skills in the STEM (science, technology, engineering, and mathematics) often find them among Chinese professionals. Mr. Mehta said that if the current increased pace of H-1B applications continues, the annual cap could be reached within the next few months. He attributed the rising demand primarily to increased startup activity in the New York City area, especially in mobile applications and IT security. He also noted that some of the current demand could represent spillover from recent denials of L-1B specialized knowledge visas by the consulate in Chennai, India.

Mr. Mehta has published a new blog entry. “From Madison to Morton: Will Prosecutorial Discretion Trump State Action in Arizona v. USA?”

Mr. Mehta was a guest speaker on “H-1B and L-1B Denials and Preserving Permanent Residence” at the American Immigration Lawyers Association’s Philadelphia Chapter Dinner Meeting held on April 19, 2012.

Angelo Paparelli has published several new blog entries. “When Possible, Treat Immigrants As Criminal Defendants, Not Criminals” and “Immigration-Agency Lawbreaking Revealed: USCIS’s EB-5 ‘Tenant-Occupancy’ Scandal”

The Wolfsdorf Immigration Law Group will present several free webinars. Upcoming topics include Investors/Traders (E Visas) and Company Transferee (L Visas) and Green Cards (E-13), to be held Thursday, May 10, 2012; Religious Worker Visas – Ordained and Non-Ordained, to be held Thursday, May 17, 2012; Artist and Entertainer Work Visas (O and P) and Green Cards (E-11), to be held June 7, 2012; Work Visas and Green Cards for Athletes (O/P and E-11), to be held Thursday, June 21, 2012; and Visa Options for International Scholars, Faculty and Staff, to be held Thursday, July 12, 2012. For more information or to register, see HERE.

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9. 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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