News from the Alliance of Business Immigration Lawyers Vol. 8, No. 9A • September 01, 2012
Headlines:
1. USCIS Submits Emergency Requests to OMB for Deferred Action-Related Forms; ICE Agents File Lawsuit – USCIS has submitted information collection requests to the OMB for “emergency” consideration related to the new deferred action program.
2. USCIS Allows 30 Additional Days for Public Comment on Revised I-9 – USCIS received over 6,200 comments in response to its earlier publication on March 27, 2012. Additional comments will now be accepted until September 21, 2012.
3. Republican Party Platform Supports More STEM Visas and Includes Consideration of Guestworker Provision – Among other things, the platform supports granting more work visas to holders of advanced degrees in science, technology, engineering, or math.
4. Labor Dept. Proposes Reorganizing Applications for Prevailing Wage Determination and Temporary Employment Certification – The ETA has proposed reorganizing ETA Form 9141, Application for Prevailing Wage Determination; ETA Form 9142, Application for Temporary Employment Certification; and the H-2A Certification Letter With Notification.
5. USCIS Releases Guidance on Accommodating Religious Beliefs When Capturing Photographs and Fingerprints – If removal of headwear or adjustments are needed, such as a same-gender photographer or fingerprint-taker, USCIS will offer a private or screened area, if available. If such an area is not available, USCIS will offer to reschedule the appointment.
6. CBP Discontinues Admission Stamps on Forms for F, M, J International Students and Scholars – If a state benefit-granting agency rejects an unstamped Form I-20/DS-2019, applicants may make an appointment with USCIS online through InfoPass and take their I-20/DS-2019 to their local USCIS office to be stamped. This transitional step will end on November 21, 2012.
7. State Dept. Announces Numerical Limits for Immigrants in FY 2012 – The worldwide employment-based preference limit for fiscal year 2012 is 144,951, and the family-sponsored preference limit is 226,000.
8. New Publications and Items of Interest – New Publications and Items of Interest
9. Member News – Member News
10. Government Agency Links – Government Agency Links
Details:
1. USCIS Submits Emergency Requests to OMB for Deferred Action-Related Forms; ICE Agents File Lawsuit
U.S. Citizenship and Immigration Services (USCIS) has submitted information collection requests to the Office of Management and Budget (OMB) for “emergency” consideration related to the new deferred action program.
The Form I-821D, Consideration of Deferred Action for Childhood Arrivals, will be used for those who are considered for relief from removal from the United States or from being placed into removal proceedings as part of the deferred action for childhood arrivals process. Those who submit requests with USCIS and demonstrate that they meet the threshold guidelines may have removal action in their case deferred for a period of two years, subject to renewal (if not terminated), based on an individualized, case-by-case assessment of the individual’s equities.
USCIS estimates that 1,041,300 respondents will use this form and that it will take 2 hours and 45 minutes to complete. The OMB notice for this form, which includes instructions on submitting comments, is available HERE. Comments will be accepted until September 17, 2012.
USCIS also has submitted an emergency request to the OMB for a revision of Form I-765, Application for Employment Authorization. The OMB notice for this form, which includes instructions on submitting comments, is available HERE. Comments will be accepted until September 17, 2012.
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); and
- I-765WS Worksheet (to establish economic need for employment).
USCIS recently developed a series of related resources, including a website. Related announcements are available:
USCIS Begins Accepting Requests for Consideration of Deferred Action for Childhood Arrivals
USCIS Publishes Forms for Consideration of Deferred Action for Childhood Arrivals
DHS Outlines Deferred Action for Childhood Arrivals Process
Meanwhile, a group of 10 U.S. Immigration and Customs Enforcement (ICE) agents have filed a lawsuit against the new deferred action directive on undocumented childhood arrivals. The agents argue that the new program forces them to violate immigration law.
Kansas Secretary of State Kris Kobach, an advisor to Mitt Romney’s presidential campaign, is representing the agents in the lawsuit filed in federal court in Dallas, Texas, against Janet Napolitano, Secretary of Homeland Security, and John Morton, ICE Director. The lawsuit is receiving financial support from NumbersUSA. “This Directive not only circumvents Congress, it also infringes on the plaintiffs’ ability to fulfill the oath they made to uphold the laws of this country. The plaintiffs seek to prevent law enforcement officers from being forced to either violate federal law if they comply with the Directive or risk adverse employment action if they disobey the unlawful orders of the DHS Secretary,” Secretary Kobach said.
Also, Texas Governor Rick Perry sent a letter to Greg Abbott, Texas Attorney General, asserting that Secretary Napolitano’s action was “a slap in the face to the rule of law and our Constitutional framework of separated powers” and “unilaterally undermine[s] the law.” Governor Perry said he was writing to ensure that “all Texas agencies understand that Secretary Napolitano’s actions confer absolutely no legal status whatsoever” to anyone who qualifies for deferred action. “In Texas, our legislature has passed laws that reflect the policy choices that they believe are right for Texas. The secretary’s directive does not undermine or change our state laws, or any federal laws that apply within the State of Texas,” he said.
2. USCIS Allows 30 Additional Days for Public Comment on Revised I-9
U.S. Citizenship and Immigration Services (USCIS) announced that it is allowing an additional 30 days for public comment on the revised I-9 form. USCIS received over 6,200 comments in response to its earlier publication on March 27, 2012. Additional comments will now be accepted until September 21, 2012.
USCIS previously 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.
The notice announcing the extension of the comment period, which includes instructions on submitting comments, is available HERE.
3. Republican Party Platform Supports More STEM Visas and Includes Consideration of Guestworker Provision
The Republican Party’s platform for 2012, which was formally approved at the Republican National Convention during the last week in August, supports granting more work visas to holders of advanced degrees in science, technology, engineering, or math (STEM) from other nations. The platform also supports encouraging foreign students who graduate from an American university with an advanced STEM degree to remain in the United States.
The platform also states that a Republican administration and Congress would partner with local governments through cooperative enforcement agreements and “will consider, in light of both current needs and historic practice, the utility of a legal and reliable source of foreign labor where needed through a new guest worker program.”
The platform states that the presence of “millions of unidentified persons” poses grave risks to the safety and sovereignty of the United States. “Our highest priority, therefore, is to secure the rule of law both at our borders and at ports of entry.” The platform supports Republican legislation to give the Department of Homeland Security long-term detention authority “to keep dangerous but undeportable aliens off our streets,” along with expediting expulsion of criminal aliens and making gang membership a deportable offense.
The platform opposes “any form of amnesty.” It supports the mandatory use of the Systematic Alien Verification for Entitlements (SAVE) program before granting any State or federal government entitlement or IRS refund. The platform “insist[s] upon enforcement at the workplace through verification systems so that jobs can be available to all legal workers. Use of the E-Verify program – an Internet-based system that verifies the employment authorization and identity of employees – must be made mandatory nationwide.” The platform also supports state enforcement efforts in the workplace.
“State efforts to reduce illegal immigration must be encouraged, not attacked,” the platform says. “The pending Department of Justice lawsuits against Arizona, Alabama, South Carolina, and Utah must be dismissed immediately. The double-layered fencing on the border that was enacted by Congress in 2006, but never completed, must finally be built. In order to restore the rule of law, federal funding should be denied to sanctuary cities that violate federal law and endanger their own citizens, and federal funding should be denied to universities that provide in-state tuition rates to illegal aliens, in open defiance of federal law.”
The platform also supports English as the nation’s official language.
Full Text of the Republican Party Platform for 2012
4. Labor Dept. Proposes Reorganizing Applications for Prevailing Wage Determination and Temporary Employment Certification
The Department of Labor’s Employment and Training Administration (ETA) has proposed reorganizing ETA Form 9141, Application for Prevailing Wage Determination; ETA Form 9142, Application for Temporary Employment Certification; and the H-2A Certification Letter With Notification.
Specifically, the Department is soliciting comments concerning the collection of data in the following information collections: Office of Management and Budget (OMB) Control Number 1205-0466, currently containing ETA Form 9141, Application for Prevailing Wage Determination, and ETA Form 9142, Application for Temporary Employment Certification, which expires on October 31, 2012; and OMB Control Number 1205-0404 containing the H-2A Certification Letter known as ETA-9144.
The Department proposes to divide 1205-0466 into three distinct information collection requests (ICRs), segregated by program, and to merge 1205-0404 into the collection that remains in 1205-0466. The Department proposes to separate out ETA Form 9141, Application for Prevailing Wage Determination, into its own collection, 1205-NEW2. The Department also proposes to divide the ETA Form 9142, Application for Temporary Employment Certification, into two collections. One would remain as 1205-0466 and would contain the ETA Form 9142A, H-2A Application for Temporary Employment Certification and Appendix A, along with other information collection burdens for the H-2A Temporary Labor Certification Program, while the second would become 1205-NEW1 and contain ETA Form 9142B, H-2B Application for Temporary Employment Certification and Appendix B, along with all the information collection burdens for the H-2B Temporary Labor Certification Program. Once separated, 1205-0404, which contains one additional information collection burden for the H-2A program, would be merged with 1205-0466 so that most of the H-2A materials can be accounted for in one ICR.
The Department said it is using this opportunity to separate the collections into “more manageable and easy to understand ICRs.”
Comments will be accepted by October 15, 2012. The notice, which includes instructions on submitting comments, is available HERE.
5. USCIS Releases Guidance on Accommodating Religious Beliefs When Capturing Photographs and Fingerprints
U.S. Citizenship and Immigration Services (USCIS) recently released policy guidance on accommodating religious beliefs during fingerprint and photograph capture. Among other things, the guidance notes that USCIS will accommodate an individual who wears headwear as part of his or her religious practices. Religious headwear may be worn if a reasonable likeness can be obtained from an individual, the full face is visible, and the religious headwear does not cast a shadow on the face. If removal of headwear or adjustments are needed, such as a same-gender photographer or fingerprint-taker, USCIS will offer a private or screened area, if available. If such an area is not available, USCIS will offer to reschedule the appointment.
6. CBP Discontinues Admission Stamps on Forms for F, M, J International Students and Scholars
As of August 10, 2012, U.S. Customs and Border Protection (CBP) no longer provides admission stamps on Forms I-20/DS-2019 for prospective and returning international students and scholars (traveling on F, M, and J visas) seeking admission to the United States. CBP said this change makes CBP processes consistent with U.S. Citizenship and Immigration Services’ (USCIS) recent change to stop stamping Forms I-20/DS-2019.
USCIS implemented this change as part of the launch of the USCIS Electronic Immigration System.
CBP noted that placing an admission stamp on Forms I-20/DS-2019 has been a longstanding practice at CBP, but it is not required. Although the admission stamps on Forms I-20/DS-2019 are not indicators of lawful status or academic program duration, some state and federal benefit-granting agencies have required international students and scholars to present stamped versions. State requirements vary.
If a state benefit-granting agency rejects an unstamped Form I-20/DS-2019, applicants may make an appointment with USCIS online through InfoPass and take their I-20/DS-2019 to their local USCIS office to be stamped. This transitional step will end on November 21, 2012.
7. State Dept. Announces Numerical Limits for Immigrants in FY 2012
The Department of State determines worldwide numerical limitations on visa issuances, based in part on data provided by U.S. Citizenship and Immigration Services (USCIS). On August 8, 2012, USCIS provided the required data to the Department’s Visa Office. The Department has determined that the worldwide employment-based preference limit for fiscal year 2012 is 144,951, and the family-sponsored preference limit is 226,000. The per-country limit is fixed at 7 percent of the family and employment annual limits; for FY 2012, the per-country limit is 25,967. The dependent area annual limit is 2 percent, or 7,419.
The Visa Bulletin for September 2012, which includes the cut-off dates for employment-based and family-based visa numbers, is available HERE.
8. New Publications and Items of Interest
New Yorker article on skilled immigration. The New Yorker has published a commentary on the need for high-skilled immigration, noting among other things that many of the best foreign Olympic athletes were trained in the United States.
USCIS national engagements. U.S. Citizenship and Immigration Services (USCIS) will host several upcoming public engagements:
- 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.
- 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.
Notes from 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.
- 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.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.
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.
9. Member News
Cyrus Mehta has published several new blog entries. “They Still Have Their Dream: Lawsuit Against Dreamers Will Go Nowhere” “Nightmare in Arizona: Governor Brewer’s Nonsensical and Mean-Spirited Executive Order Against Dreamers”
Angelo Paparelli has published several new blog entries. “The EB-5 Investor Immigration Program: Green Shoots or Chutes and Ladders?” “Immigration Brainstorming and DREAMstorming”
Larrabee, Mehlman, Albi, Coker LLP has been certified by the National Women Business Owners Corporation (NWBOC). The NWBOC grants certification after a thorough review of a company’s ownership, control, and general business practices. Certification enables women-owned businesses to develop relationships with a greater diversity of companies and creates opportunities for future partnerships.
10. 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