News from the Alliance of Business Immigration Lawyers Vol. 8, No. 7B • July 15, 2012
Headlines:
1. U.S., Canada Issue Joint Statement on ‘Beyond the Border’ Initiative – The action plan includes 32 initiatives and calls for enhancements to programs that help trusted businesses and travelers move efficiently across the border; introduces new measures to facilitate movement and trade; and invests in improvements to shared infrastructure and technology.
2. DOL Requests Comments on LCA for H-1B, H-1B1, and E-3 Applications – The Department of Labor’s Employment and Training Administration has requested comments on the labor condition application and instructions for H-1B, H-1B1, and E-3 nonimmigrants; ETA Forms 9035, 9035E, and 9035CP; and the Wage and Hour Division’s Nonimmigrant Worker Information Form WH-4 (extension with revisions).
3. Smith Letter Denounces Deferred Action, Requests Anti-Fraud Measures; NAFSA Applauds Obama Administration Policy – Rep. Smith recommended various anti-fraud measures; NAFSA called the Obama administration’s action a “major step forward”; USCIS postponed its July 9 engagement with no new date set.
4. ABIL Global: Canada – Canada announced new rules for criminal admissibility to Canada, and new criteria for Québec permanent residence applications.
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. U.S., Canada Issue Joint Statement on ‘Beyond the Border’ Initiative
On June 28, 2012, the United States and Canada released a joint “Statement of Privacy Principles” as an “important milestone in the implementation of the Beyond the Border Action Plan,” according to Secretary of Homeland Security Janet Napolitano. The Statement of Privacy Principles concerns the provision, receipt, and use of personal information exchanged between the two countries to “address shared threats to national security.”
U.S. President Barak Obama and Canadian Prime Minister Harper announced the joint “Beyond the Border” declaration on February 4, 2011. The action plan includes 32 initiatives and calls for enhancements to programs that help trusted businesses and travelers move efficiently across the border; introduces new measures to facilitate movement and trade across the border while reducing the administrative burden for business; and invests in improvements to shared border infrastructure and technology. “By expediting lawful trade and commerce into and across our shared border, the United States and Canada seek to enhance our economic competitiveness, create jobs and support economic growth,” a related announcement notes.
Statement of Privacy Principles
2. DOL Requests Comments on LCA for H-1B, H-1B1, and E-3 Applications
The Department of Labor’s Employment and Training Administration has requested comments on the labor condition application (LCA) and instructions for H-1B, H-1B1, and E-3 nonimmigrants; ETA Forms 9035, 9035E, and 9035CP; and the Wage and Hour Division’s Nonimmigrant Worker Information Form WH-4 (extension with revisions). Among other things the changes in the H-1B LCA would appear to make it difficult or at least more cumbersome for any employer sending H-1B workers off site; clarify what employers are attesting to regarding prevailing wage determinations; and clarify what H-1B dependent employers are attesting to.
The notice, which includes information on the Department’s rationale for proposed changes and instructions on how to comment, was published on July 9, 2012, and is available HERE.
3. Smith Letter Denounces Deferred Action, Requests Anti-Fraud Measures; NAFSA Applauds Obama Administration Policy
Rep. Lamar Smith (R-Tex.), chairman of the House of Representatives’ Committee on the Judiciary, sent a letter on July 3, 2012, to John Morton, Director, U.S. Immigration and Customs Enforcement, denouncing the new Obama administration plan to exercise its prosecutorial discretion to grant deferred action and work authorization to certain children of undocumented persons. Rep. Smith called it an “overreach of executive branch authority,” a “magnet for fraud,” and a “blatantly political” action that is an “unprecedented breach of faith with the American people and ignores the rule of law.”
Rep. Smith recommended various anti-fraud measures, including matching and verifying school transcripts for applicants, requiring applicants to seek relief in person, and requiring applicants to demonstrate physical presence through documentation.
Rep. Smith expressed concerns that deferred action is already being applied, and asked a number of questions, including how many individuals had been granted deferred action and whether any evidentiary standard was in place. Rep. Smith said that the “lack of forethought” about processing and implementation before the policy was announced was a “dereliction of the duty the President vowed to uphold.” “Unfortunately, this administration continues to place partisan politics and illegal immigrants ahead of the American people and the rule of law,” he said. Rep. Smith asked for ongoing briefings to be kept informed about the policy as it is developed and implemented.
Not everyone was displeased by the new Obama administration policy, however. NAFSA: Association of International Educators applauded the action and called it a “major step forward.” NAFSA said it has long urged making deferred action official government policy for undocumented students in the United States. “It will offer urgently needed reprieve, on a rigorous case-by-case basis, for individuals who currently find themselves, through no fault of their own, in an untenable and frightening legal limbo,” NAFSA said, noting that undocumented students, brought to the United States by their parents as children, “today live under the constant threat of deportation and are unable to contribute productively to the only country they call home.”
NAFSA also called for Congress to pass the DREAM Act and confer the benefits in that act by law.
Rep. Smith’s Letter to Director Morton
4. ABIL Global: Canada
Canada has announced new rules for criminal admissibility to Canada, and new criteria for Québec permanent residence applications.
New Rules for Criminal Admissibility to Canada
Certain individuals, previously ineligible for entry to Canada due to past criminality, may be eligible for a fee-exempt “on the spot” temporary resident permit for one visit to Canada, under new rules that took effect on March 1, 2012.
To qualify for the exemption, the port-of-entry applicant must:
- have served no jail time, and
- have committed no other acts that would prevent him or her from entering Canada.
Applicants may be eligible for a fee waiver if they:
- have been convicted of an eligible offense (or its equivalent in foreign law);
- have served no jail time;
- have committed no other acts that would prevent them from entering Canada; and
- are not inadmissible for any other reason.
Eligible convictions include those equivalent to criminal offenses under the Immigration and Refugee Protection Act (IRPA), Section 36(2).
The equivalent convictions vary from country to country. Among others, they include:
No serious criminal offenses, defined under Section 36(1) of IRPA, are eligible. Among others, they include:
Applicants may become admissible again if they:
- apply for a temporary resident permit and are approved;
- demonstrate through appropriate documentation that they meet the legal requirements to be deemed rehabilitated;
- apply for rehabilitation and are approved; or
- obtain a pardon.
Legal representation for these various applications and processes is strongly recommended because refusal rates are high. Contact your Alliance of Business Immigration Lawyers attorney for assistance.
New Criteria for Québec Permanent Residence Applications
Over the last three years, the number of applications for economic permanent immigration to the Canadian province of Québec has more than doubled, rising from approximately 30,000 in 2008 to approximately 65,000 in 2011. In response to this growing volume, the Québec government’s Ministry of Immigration and Cultural Communities (MICC) proposed on March 21, 2012, an omnibus bill encompassing several major changes to Québec’s immigration law, the Loi sur l’immigration au Québec. If passed in the Québec National Assembly, the bill will represent significant changes to eligibility for obtaining a Québec Selection Certificate to immigrate permanently to Québec.
The proposed changes will govern applications accepted by Québec for the period April 1, 2012, through March 31, 2013. These changes are aimed at expediting processing times and according priority treatment to candidates for Québec permanent residence with professional profiles currently highly sought after in the Québec labor market, and at restricting the eligibility of other candidates. A new Demand Management System will dictate the numbers of applications for Québec permanent residence accepted.
Applications for Québec permanent residence by foreign workers and students will be divided into two main groups. Group 1 will not have any restrictions on the number of applications accepted and will include candidates who obtain at least 12 out of 16 points for their Field of Training based on the MICC’s list of Fields of Training. Other candidates who may form part of Group 1 are foreign nationals working in Québec with valid work permits, foreign nationals participating in recognized youth exchange programs, foreign nationals holding valid study permits who obtained their diplomas from recognized post-secondary educational institutions in Québec, and foreign nationals with an employment offer validated by the MICC. Foreign workers who can be attributed points for their Field of Training but obtain less than 12 points will form part of Group 2, with a limit of 14,300 applications.
Under the new Demand Management System, applications for business immigrants will be restricted to pre-set quotas. For investors, the maximum number of applications accepted for the period April 1, 2012, through March 31, 2013, is 2,700. That quota was reached on April 12, 2012. A maximum of 215 entrepreneur applications will be accepted for the April 1, 2012-March 31, 2013, period. The Demand Management System is not intended to have an impact on the Québec government’s commitment to accept approximately 50,000 immigrants annually from 2012 to 2015. The proposed changes will make it more difficult, however, for many candidates who would have qualified before March 21, 2012, for permanent immigration to Québec.
5. New Publications and Items of Interest
OSC webinar series, videos, best practices. The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is offering a number of upcoming webinars for workers, advocates, employers, and HR professionals. For more information or to register, see HERE.
OSC released a short educational video highlighting common problems encountered by employers when reverifying the employment authorization of refugees and asylees, and providing guidance on how to avoid violating the anti-discrimination provision of the INA. The video is available HERE. OSC also released a second video that encourages employers, employees and advocates to attend a free webinar on unfair employment practices under the INA. The video is available HERE.
OSC also released “Best Practices for Job Postings,” a guide for employers, recruiters, and Internet job search engine sites, including language to avoid in job postings. The information is available HERE. A related flier is available HERE.
Fact sheet on immigration enforcement. The Department of Homeland Security has released a fact sheet, “Transforming the Immigration Enforcement System.” The fact sheet includes a chronological listing of enforcement actions taken since 2009, along with links to key documents.
Trainings on prevailing wage requirements for federal contracts. The Department of Labor’s Wage and Hour Division will host four free trainings on the rules concerning prevailing wage requirements for federal contractors, contracting officials, unions, workers, and other interested parties. The trainings will be in Los Angeles (July 24-26); Miami (July 31-August 2); Philadelphia (July 10-12); and Seattle (August 7-9). Space is limited. To attend, e-mail [email protected] and include the participant’s name, title, organization, and e-mail address, as well as the location of the training desired. A Department of Labor representative will advise whether space remains available. ANNOUNCEMENT
Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, 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.
- 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 issue.
ORDER HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or [email protected].
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 has recently been named a Nautilus book award silver medal winner in the Conscious Media/Journalism/Investigative Reporting category, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards in the Multicultural/Nonfiction Adult category and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012, in the Non-Traditional Photojournalism Publishing category.
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.
6. Member News
Robert Loughran was quoted in “New Immigration Rule May Spawn Discomfort,” on the new deferred action program for the children of undocumented people. Mr. Loughran said, “This can create an opportunity but also create a problem when an employee comes up and says they need assistance in applying for work authorization. This is an administration that gives on one hand but prosecutes on the other.” The article appeared in the June 29, 2012, edition of The Austin Business Journal.
Cyrus Mehta recently published a new blog entry. “”
Angelo Paparelli recently published a new blog entry. “”.
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