News from the Alliance of Business Immigration Lawyers Vol. 8, No. 8B • August 15, 2012
1. USCIS Begins Accepting Deferred Action Requests – USCIS has released forms, instructions, and additional information relevant to the deferred action for childhood arrivals process.
2. Use Current I-9 Even After August 31 OMB Expiration Passes, USCIS Says – Employers should continue to use the current I-9 employment eligibility verification form even after the August 31, 2012, OMB control number expiration date passes.
3. CBP Warns I-94 Processing May Be Delayed – The current processing time for entering foreign visitors’ travel information into the I-94 database is 30 days or more.
4. Groups of Travelers Can Now Submit Multiple ESTA Applications – Multiple applications may be submitted and paid for in one transaction via the Electronic System for Travel Authorization.
5. Second Circuit Finds New York Law Prohibiting Nonimmigrant Pharmacists Unconstitutional – In Paidi v. Mills, the U.S. Court of Appeals for the Second Circuit found unconstitutional a New York law stating that only U.S. citizens and legal permanent residents may obtain a pharmacist’s license in New York.
6. Chicago National Processing Center Has Moved – Paper filings for the D-1, H-2A, and H-2B programs should be sent to the CNPC’s new addresses.
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
1. USCIS Begins Accepting Deferred Action Requests
U.S. Citizenship and Immigration Services (USCIS) has released forms, instructions, and additional information relevant to the deferred action for childhood arrivals process. USCIS has begun accepting requests for consideration of deferred action for childhood arrivals.
As background, on June 15, 2012, Secretary of Homeland Security Janet Napolitano announced that certain young people who came to the United States as children and meet other key guidelines may be eligible, on a case-by-case basis, to receive deferred action. USCIS is finalizing a process by which potentially eligible individuals may request consideration of deferred action for childhood arrivals.
At a stakeholder meeting on August 14, USCIS Director Alejandro Mayorkas said that the agency will not share information about applicants and their families with U.S. Immigration and Customs Enforcement (ICE) for enforcement purposes.
Individuals requesting consideration of deferred action for childhood arrivals must submit:
- Form I-821D, Consideration of Deferred Action for Childhood Arrivals
- Form I-765, Application for Employment Authorization (with accompanying fees; the total is $465, including the biometrics fee and issuance of a secure employment authorization document)
- I-765WS Worksheet (to establish economic need for employment)
Information shared during a recent media call includes the following highlights:
- Requestors – those in removal proceedings, those with final orders, and those who have never been in removal proceedings – will be able to affirmatively request consideration of deferred action for childhood arrivals with USCIS.
- Requestors will use a form developed for this specific purpose.
- Requestors will mail their deferred action request together with an application for an employment authorization document and all applicable fees to the USCIS lockbox.
- All requestors must provide biometrics and undergo background checks.
- Fee waivers cannot be requested for the application for employment authorization and biometric collection. However, fee exemptions will be available in limited circumstances.
- The four USCIS Service Centers will review requests.
At the stakeholder meeting on August 14, USCIS also noted that educational institutions must be accredited by a state or federal government.
USCIS recently developed a series of related resources, including a website, http://www.uscis.gov/childhoodarrivals, which includes frequently asked questions, guidelines, examples of documentation to provide for evidence, information on fee exemptions and on how to handle cases that are in other immigration processes, a flier, a brochure, and a number of other resources. USCIS encourages individuals with questions to visit this website or call the USCIS National Customer Service line at 1-800-375-5283. See the website and form instructions for details and mailing instructions to the correct USCIS lockbox facility. Processing is expected to take several months.
USCIS’s website says those who are about to be removed by ICE and believe that they meet the guidelines for consideration of deferred action for childhood arrivals should immediately contact either the Law Enforcement Support Center’s hotline at 1-855-448-6903 (staffed 24 hours a day, 7 days a week) or the ICE Office of the Public Advocate through the Office’s hotline at 1-888-351-4024 (staffed 9 a.m. – 5 p.m., Monday through Friday) or by email at EROPublicAdvocate@ice.dhs.gov.
Individuals who believe they are eligible should be aware of immigration scams, USCIS noted. Earlier Announcement.
2. Use Current I-9 Even After August 31 OMB Expiration Passes, USCIS Says
U.S. Citizenship and Immigration Services recently announced that employers should continue to use the current I-9 employment eligibility verification form even after the August 31, 2012, Office of Management and Budget control number expiration date passes. USCIS said it will provide updated information about the new version of the Form I-9 as it becomes available.
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3. CBP Warns I-94 Processing May Be Delayed
U.S. Customs and Border Protection (CBP) is automating traveler arrival records to streamline passenger processing. The current processing time for entering foreign visitors’ travel information into the I-94 database is 30 days or more. This does not affect the majority of foreign travelers visiting for business or leisure and will not affect any visitor’s record of departure, CBP said.
Visitors may need to prove their legal-visitor status within the first 30-45 days of their U.S. stay to:
- motor vehicle registration or drivers’ licensing agencies;
- the Social Security Administration;
- U.S. Citizenship and Immigration Services; or
- universities and schools.
If visitors need to provide evidence of legal status during this time frame, they should include:
- an unexpired foreign passport;
- the country of citizenship; and
- CBP Arrival/Departure Record, Form I-94 (if issued)
Contact CBP for more information or with questions:
Tel: (877) CBP-5511
TTD: (866) 880-6582
4. Groups of Travelers Can Now Submit Multiple ESTA Applications
U.S. Customs and Border Protection (CBP) announced on August 9, 2012, that multiple applications may be submitted and paid for in one transaction via the Electronic System for Travel Authorization (ESTA). The new online application is available beginning on Wednesday, August 15.
Applicants must enter biographic data and an e-mail address to create a Group ID that will allow a family or group the ability to input up to 50 ESTA applications and complete the transaction in a single credit card payment. All payments for ESTA applications must be made by credit card or debit card when applying or renewing. Applications will not be submitted for processing until all payment information is received.
ESTA is an electronic travel authorization that all nationals of Visa- Waiver Program (VWP) countries must obtain before boarding a carrier to travel by air or sea to the United States under the VWP. This travel authorization has been mandatory since January 12, 2009. ESTA applications may be submitted at any time before travel, although CBP recommends applying at least 72 hours before departure. Once approved, authorizations are generally valid for multiple entries into the U.S. for up to two years or until the applicant’s passport expires or other specific circumstances give rise to a need to reapply, whichever comes first.
The Department of Homeland Security administers the VWP. The program enables eligible nationals of 36 VWP designated countries to travel to the United States for tourism or business for stays of 90 days or less without obtaining a visa. Additional Information Regarding the VWP. Frequently Asked Questionsabout the VWP and ESTA.
5. Second Circuit Finds New York Law Prohibiting Nonimmigrant Pharmacists Unconstitutional
In Paidi v. Mills, the U.S. Court of Appeals for the Second Circuit found unconstitutional New York Education Law § 6805(1)(6), which stated that only U.S. citizens and legal permanent residents may obtain a pharmacist’s license in New York.
The nonimmigrant plaintiffs had obtained pharmacists’ licenses. Most of them had H-1B temporary worker visas; the remaining plaintiffs had TN (Trade NAFTA) visas. The court noted that although all of the plaintiffs were on temporary visas, they all were legally authorized to reside and work in the United States for more than six years, and in some cases for more than 10 years.
The court noted that the Fourteenth Amendment to the U.S. Constitution provides that states may not deny to any person within its jurisdiction the equal protection of the laws. Under the Fourteenth Amendment, any law that interferes with the exercise of a fundamental right or “operates to the peculiar disadvantage of a suspect class” is to be reviewed under a strict scrutiny standard. The court also pointed out that the Supreme Court has long held that states cannot discriminate based on alienage. There are only two exceptions to the strict scrutiny standard, the court noted. The first exception “allows states to exclude aliens from political and governmental functions as long as the exclusion satisfies a rational basis review.” The second exception acknowledges that people who reside in the United States without authorization may be treated differently in some instances from those who are in the United States legally.
In the instant case, the court noted that New York was proposing that a third exception be established that the Fourteenth Amendment’s protections not apply to nonimmigrant lawfully admitted persons who require a visa to remain in the United States. The court rejected New York’s approach, noting that, among other things, the bedrock of the Supreme Court’s decisions in this area is the fact that “although lawfully admitted aliens and U.S. citizens are not constitutionally distinguishable, aliens constitute a discrete and insular minority because of their limited role in the political process” and are therefore relatively powerless and vulnerable. The court said that the state’s focus on lawfully admitted nonimmigrants’ “transience” was “overly formalistic and wholly unpersuasive,” since the plaintiffs were transient in name only.
The court said it agreed with the district court that there is no evidence that transience among New York pharmacists threatens public health or that nonimmigrant pharmacists, as a class, are considerably more transient than LPR and citizen pharmacists. “Citizenship and Legal Permanent Residency carry no guarantee that a citizen or LPR professional will remain in New York (or the United States for that matter), have funds available in the event of malpractice, or have the necessary skill to perform the task at hand.” Noting that there are other ways to limit the dangers of potentially transient professionals, the court held that the statute unconstitutionally discriminated against the plaintiffs in violation of their Fourteenth Amendment rights.
The court added that the federal power to determine immigration policy is settled, extensive, and predominant. Federal law recognizes that states have a legitimate interest in ensuring that applicants for professional licenses have the necessary educational and experiential qualifications for the positions sought. But “that traditional police power cannot morph into a determination that a certain subclass of immigrants is not qualified for licensure merely because of their immigration status,” the court said. By making immigration status a professional qualification and thereby causing the group of noncitizens and non-LPRs whom Congress intended to allow to practice specialty occupations to be ineligible to do so, the New York statute “has created an obstacle to the accomplishment and execution of the [Immigration and Nationality Act],” the court noted, agreeing with the district court that Congress’s federal laws creating H-1B and TN status were not merely “advisory.”
6. Chicago National Processing Center Has Moved
The Chicago National Processing Center (CNPC) has a new address. Paper filings for the D-1, H-2A, and H-2B programs should be sent to the CNPC’s new addresses below. The CNPC move does not affect the electronic filing of labor condition applications (LCAs), but any employer with permission to file by hard copy should direct its LCA filing(s) to the new address.
Payments of H-2A labor certification fees should be sent to the new P.O. Box address (also listed below).
Mailing Address for Application Filings:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
11 West Quincy Court
Chicago, IL 60604-2105
P.O. Box Address for the Receipt of H-2A-Related Filing Fees:
U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
Chicago National Processing Center
P.O. Box A3804
Chicago, IL 60690-3804
7. New Publications and Items of Interest
USCIS national engagements. U.S. Citizenship and Immigration Services (USCIS) will host several upcoming public engagements:
- On August 22, 2012, USCIS will hold a public engagement in Spanish via teleconference and live stream. Agency representatives will share agency updates, discuss immigration-related topics, and be available to answer questions. See HERE for information.
- On September 13, 2012, USCIS will hold a public engagement on Service Center operations for refugee and asylum stakeholders. Subject matter experts from the Refugee, Asylum and International Operations Directorate, Texas and Nebraska Service Centers, and the National Visa Center will provide information and answer questions on refugee and asylum issues. The TSC will also offer tours of the USCIS Lockbox facility in Lewisville, Texas; the records facility in Mesquite, Texas; and the Dallas District Office on Wednesday, September 12. Registration for the in-person conference will be limited to 200 attendees. See HERE for information.
- On October 16, 2012, USCIS will hold a public engagement (in-person in Washington, DC, and via teleconference) for EB-5 immigrant investor stakeholders. See HERE for information.
Notes on Previous Engagements by Topic
Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, recently released 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 issue.
ORDER HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.email@example.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.
Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, 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 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. Green Card Stories is also featured on National Public Radio’s photo blog.
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.
8. Member News
The following Alliance of Business Immigration Lawyers members were listed as “Most Highly Regarded Individuals” under the Corporate Immigration category in Who’s Who Legal 2012:
The following Alliance of Business Immigration Lawyers members were listed under Who’s Who Legal 2012‘s Corporate Immigration category:
Enrique Arellano – Profile
Jacqueline Bart – Profile
Bernard Caris – Profile
Maria Celebi – Profile
Francis Chin – Profile
Steven Clark – Profile
Arnold Conyer – Profile
Laura Danielson – Profile
Rami Fakhoury – Profile
Bryan Funai – Profile
Steven Garfinkel – Profile
Avi Gomberg – Profile
Kenneth Ing – Profile
Mark Ivener – Profile
Jelle Kroes – Profile
Robert Loughran – Profile
Katie Malyon – Profile
Sharon Mehlman – Profile
Cyrus Mehta – Profile
John Nahajzer – Profile
Ariel Orrego-Villacorta – Profile
Julie Pearl – Profile
William Reich – Profile
Nicolas Rollason – Profile
Steve Trow – Profile
Karl Waheed – Profile
Chris Watters – Profile
Charles Kuck has published a new blog entry. “Obama Deferred Action (DACA) Details Released!” Also, Mr. Kuck’s article, “The New TPS Adjustment Option – Are You Eligible?” was published in Immigration Daily.
Robert Loughran was quoted in the August 2, 2012, edition of the Wall Street Journal, in “The Renouncers: Who Gave Up U.S. Citizenship, and Why?” Mr. Loughran noted that some Chinese-origin renouncers are feeling newly comfortable with China’s political stability, and others are “internationalist” and fear new, expansive interpretations of U.S. laws. On the other hand, he noted that Chinese coming to the United States “value the stability and education available to their children.”
Cyrus Mehta has published a new blog entry. “Through The Looking Glass: Adventures With Arrabally And Yerrabelly In Immigration Land”
Angelo Paparelli has published several new blog entries. “Immigration Good Behavior – A Riddle Riddled With Riddles” “Immigration D-Day for DACA: Get Protection!”
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