PERU: Amendments have been made recently to Peruvian immigration rules.

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Changes do not often occur in Peruvian immigration law, but there have been some recent modifications to certain aspects of immigration proceedings and requirements by the Peruvian Immigration Administrative Authority concerning visa processes for foreign nationals.

Legislative Decree No. 1130 has created a new immigration Peruvian authority based on the former authority known as “DIGEMIN” and now called “MIGRACIONES.” This legislative decree took effect December 7, 2012. The new government office, the National Superintendence of Migration (MIGRACIONES), is a technical and specialized entity within the Ministry of the Interior of Peru that has its own administrative, economic, and functional autonomy.

In addition, on December 23, 2012, Supreme Decree No. 003-2012-IN was published, which included the Text of Administrative Procedures of the Ministry of the Interior (TUPA), comprising procedures and related administrative services. Among them are those pertinent to MIGRACIONES, which is now the lead agency in domestic immigration policy in Peru. Among its different powers, however, there still exists the recently issued DIGEMIN TUPA. MIGRACIONES has not yet issued its own TUPA.

In general, MIGRACIONES has become more demanding and rigorous. Previously, there were only the discretionary judgment and criteria of DIGEMIN in some aspects. Now the legal basis has been incorporated into the recent DIGEMIN TUPA regarding such aspects. DIGEMIN TUPA contains the administrative rules to apply to immigration law in Peru.

Now there are more requirements for work visas and appointed worker visas related to performing labor activities in Peru for those who are either working in the country employed by local companies registered on their payroll as “dependent workers,” or as foreigners who provide services in Peru to some local companies as “consultants or advisors” on a regular basis and who hold a migratory status and visa regulated by law, maintaining their capacity as workers for foreign companies because they are not included on the payroll of Peruvian companies.

The most significant changes include:

I. Change of status (in-country processing) or obtaining of visa proceeding (with a consular step):

Resident – Worker (WRA)

  • A foreign citizen who requires this type of visa must sign the Initiation “F-0004” form, in the case of “Change of Status” procedure (in-country processing), since he or she is in the country.
  • At present, the F-0004 is obtained online either for in-country or obtaining of visa proceeding.
  • No more than 15 working days should elapse between the date of approval of the employment contract for foreign nationals and the start date of filing the case before MIGRACIONES.
  • Where the parties in an employment contract related to a foreign national have agreed to a probationary period, MIGRACIONES shall first grant a visa with temporary worker status only until the completion of this period. After that, the applicant applies for a “change of visa process” to get his or her WRA visa at MIGRACIONES.
  • The power of attorney letter granted by the foreign citizen must be addressed to the National Superintendence of Migration-MIGRACIONES, not to DIGEMIN.
  • A copy of the Registry of Taxpayers (RUC) of the local company employing the foreign national, which is obtained from SUNAT’s website using the key password “clave sol,” must be “Active” (Activo) and “Existing” (Habido), and the local company must have workers enrolled on its payroll.
  • A certified copy of the validity of the power of attorney (Vigencia de Poder) of the representative of the contracting employer updated and recently issued by the Registry Office must show explicitly that this is a representative of the employer who has signed the employment contract on behalf of the local company, and has the authorization to hire staff.
  • The foreign passport of the applicant must have a minimum validity of one year.

Appointed Worker (WD1)

  • A foreign citizen who requires this type of visa must sign the Initiation “F-0004” form in the case of a change of status (in-country process), because he or she is in the country.
  • At present, the F-0004 is obtained online either for in-country or obtaining of visa proceeding.
  • In addition to the requirements within the scope of the letter of appointment to be granted to the appointed worker by the foreign company that will provide services to the local company, a letter that is addressed to the receiving company must state that both wages, as per diem, or any payment to the appointed worker, shall be paid by the foreign company. The age of the individual must also be indicated in this letter.
  • A Certificate of Specialization in the work that the appointed worker will perform in the local company in Peru, should be issued by the foreign company or foreign study center, duly legalized by the Peruvian consulate abroad and endorsed by the Peruvian Ministry of Foreign relations or with an apostil abroad, as appropriate.
  • A copy of the Registry of Taxpayers (RUC) of the local company employing the foreign national, which is obtained from SUNAT’s website using the key password “clave sol,” must be “Active” (Activo) and “Existing” (Habido), and the local company must have workers enrolled on its payroll.
  • A certified copy of the validity of the power of attorney (Vigencia de Poder) of the representative of the local company receiving the services, who has signed the service agreement and the letter of the beneficiary company (local company), should be recently updated and issued by the corresponding Registry Office.
  • The applicant’s passport should be valid for at least six months.

The requirements above apply to both types of procedures, either “change of immigration status” or “obtainment of visa,” unless specific reference to only one of them is made.

Other requirements, depending on the type of procedure to be followed, remain mandatory.

In case of an extension or renewal of the permit for an appointed worker (WD1) beyond the additional 90 days initially granted, the INTERPOL International Exchange sheet should be attached to the file and submitted to MIGRACIONES for this purpose, provided that the extension or renewal requested is at least three months.

II. Procedure for Extension of Residence Permit

Resident Worker

Three original recent payslips for the foreign worker must be presented to MIGRACIONES in addition to other documentation, demonstrating continued employment during the last year of stay in the country.

III. Procedure of Extension of Authorization of Permanency:

Temporary Worker/Appointed Worker

The INTERPOL International Exchange Sheet should be presented if the requested extension is at least three months.

This must be presented to MIGRACIONES in addition to other required documents in the case of extension beyond the additional 90 days initially granting authorization to work for a local company under a dependent labor relationship as a subordinated worker (temporary worker), or as a consultant or advisor (appointed worker).

In addition, three original recent payslips of the foreign worker for a temporary worker visas must be filed.

 

Requirements in immigration proceedings for change of status and obtaining visa for immigrants, investors, among others, have also been amended.

News from the Alliance of Business Immigration Lawyers Vol. 8, No. 12B • December 15, 2012

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Headlines:

1. EB-5 Adjudications Expected to Move to DC; Guidance Memo Not Yet Released – Within four to six months, EB-5 responsibilities will be moved to Washington, DC, under a new EB-5 Program Office.

2. DHS Adds Taiwan to Visa Waiver Program – In FY 2011, 243,186 visitors from Taiwan traveled to the United States.

3. USCIS Offers Guidance on E-Verify Best Practices for Foreign Names – Other than letters, the only characters allowed in E-Verify are spaces, single quotation marks, and hyphens.

4. Outage Disrupts DOL’s PERM Online System – The Department of Labor’s PERM online system had outage issues from November 21-27, 2012.

5. DOL Releases FAQ on H-2A, H-2B iCERT Implementation – When filing electronically through iCERT, the preparer must upload all required supporting documentation before submitting the application.

6. Twenty-One Puerto Rican Companies Become ‘IMAGE’ Certified – As part of the IMAGE program, ICE provides private companies with education and training on proper hiring procedures, including use of employment screening tools such as E-Verify.

7. DHS Announces CNMI-Only Transitional Worker Limit – DHS announced that the FY 2013 limit for Commonwealth of the Northern Mariana Islands-Only Transitional Workers (CW-1) is 15,000.

8. Employment-Based Priority Dates Advance in Some Categories for January 2013 – Among other things, for EB-3, China moved ahead by 2.75 months, to September 22, 2006, and India advanced by one week, to November 8, 2002.

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

10. Member News – Member News

11. Government Agency Links – Government Agency Links

Details:

1. EB-5 Adjudications Expected to Move to DC; Guidance Memo Not Yet Released

On December 3, 2012, U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas noted on a stakeholder conference call that within four to six months, EB-5 responsibilities will be moved to Washington, DC, under a new EB-5 Program Office. The chief of the new office will report to the USCIS Deputy Director. According to unofficial reports on the call, Director Mayorkas said a goal is to move toward a more dynamic, direct e-mail relationship between adjudicators and the public, and to move away from the current “request for evidence” model. The new EB-5 Program Office will handle adjudications, legislative affairs, and policy, in addition to having full-time staff devoted to identifying fraud.

Director Mayorkas also noted that USCIS is working on profound policy issues, and on training officers in the realities of the business world. In response to a query, Director Mayorkas said the agency is still working on the long-awaited overarching EB-5 guidance memorandum.

In response to questions, USCIS noted that entrepreneurs need to be able to tell their story when pitching to investors, so the agency would also like to see something similar. The more the entrepreneur can clearly articulate his or her situation, the easier it is for USCIS officers to see that the entrepreneur is an expert. Important pieces of information should be well-defined, USCIS said, also noting that fraud indicators are being revised.

USCIS has not yet released a summary or transcript of the call.

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2. DHS Adds Taiwan to Visa Waiver Program

As of November 1, 2012, the Department of Homeland Security (DHS) designated Taiwan for the Visa Waiver Program (VWP). Secretary of Homeland Security Janet Napolitano said the move was “a major step forward in our long-standing economic partnership with Taiwan.”

Taiwan joins 36 participants in the VWP, which permits visa-free travel for eligible travelers visiting the United States for 90 days or fewer for business or tourism. In fiscal year (FY) 2011, the VWP accounted for 18.3 million visits to the United States, or more than 60 percent of tourists and business travelers entering the United States by air. In FY 2011, 243,186 visitors from Taiwan traveled to the United States.

In accordance with the VWP designation process, DHS determined that Taiwan complies with key security and information-sharing requirements, such as enhanced law enforcement and security-related data-sharing with the United States; timely reporting of lost and stolen passports; and maintaining high counterterrorism, law enforcement, border control, aviation, and document security standards.

As with other VWP travelers, eligible Taiwan passport holders who wish to participate in the program must apply for advance authorization through the Electronic System for Travel Authorization (ESTA), a DHS Web-based system. Eligible Taiwan passport-holders with an approved ESTA may visit the United States without visas.

ANNOUNCEMENT

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3. USCIS Offers Guidance on E-Verify Best Practices for Foreign Names

U.S. Citizenship and Immigration Services (USCIS) recently answered a query about potential discrepancies related to special characters in foreign names when using the E-Verify system. For example, the biographic page of a passport does not recognize the German umlauted “?” and will translate it to the machine-readable “ue,” whereas a DS-2019 or I-20 may translate it as “u,” which can lead to spelling discrepancies in records.

USCIS explained that other than letters, the only characters allowed in E-Verify are spaces, single quotation marks, and hyphens. As a best practice, USCIS said employers should enter their employees’ names into E-Verify as they appear in Section 1 of the I-9 employment authorization verification form, without any special characters E-Verify does not accept. USCIS and partner agency systems have means of reconciling variations based on known variations in spelling due to language and culture, USCIS said. E-Verify relies on algorithms to cross-reference employee information, but USCIS said it cannot provide specific information regarding these algorithms.

If E-Verify is unable to initially confirm that a variation in spelling relates to the same person, the case is sent to status verifiers for additional verification under the “name check review process.” Through this process, verifiers may be able to reconcile a name variation without a need to contact the individual. If the variation cannot be reconciled, the employee may need to be contacted, USCIS noted.

QUERY & USCIS’S RESPONSE

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4. Outage Disrupts DOL’s PERM Online System

The Department of Labor’s PERM online system had outage issues from November 21-27, 2012. The Department issued the following alert:

The PERM online filing and processing system was disrupted late Wednesday, November 21, 2012. This disruption was caused in the performance of necessary maintenance, which temporarily disabled certain parts of the system but not the entire system. This occurrence made diagnosing and fixing the problem more difficult. While the system was fully back online late Tuesday, we are assessing the extent of the damage to cases that may have been filed during the period from Thursday to Tuesday afternoon. If you have any questions or concerns about cases you filed during this time period, please send an e-mail to PERM.Issues@dol.gov.

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5. DOL Releases FAQ on H-2A, H-2B iCERT Implementation

The Department of Labor’s Office of Foreign Labor Certification (OFLC) released a FAQ in December 2012 on H-2A and H-2B iCERT implementation. The iCERT visa portal system is a Web-based filing and case management platform that provides access to program services across the foreign labor certification programs that OFLC administers.

Among other things, the FAQ notes that employers or their authorized representatives filing in the H-2A program may now file their applications electronically through iCERT. H-2B applications have been accepted through iCERT since October 15, 2012.

The FAQ also states that when filing electronically through iCERT, the preparer must upload all required supporting documentation before submitting the application. Additional documentation cannot be uploaded in connection with the application after submission. Where an employer receives a Request for Further Information (RFI) (H-2B program) or a Notice of Deficiency (NOD) (H-2A program), the employer must respond to the RFI or NOD by providing the additional required documents and information to the Chicago National Processing Center by e-mail or mail, outside of the iCERT System.

The FAQ advises preparers to “remember to upload a scanned copy of the signed and dated program-specific appendix (Appendix B.1 for the H-2B program, or Appendix A.2 for the H-2A program) and all required supporting documentation before submitting an application.” For job contractors filing under the H-2B program as joint employers with their employer-clients, a separate attachment containing the employer-client’s business and contact information (i.e., Sections C and D of the ETA Form 9142) and a signed and dated Appendix B.1 for the employer-client is still required and must be scanned and uploaded, along with a description of the relationship between the job contractor and the employer-client, before electronically filing the application.

When the Certifying Officer has made a determination to grant temporary labor certification, the employer will receive an original certified ETA Form 9142 and, depending on the program, Appendix B.1 (for H-2B) or A.2 (for H-2A) issued on blue security paper, the FAQ notes. Upon receipt of the original certified ETA Form 9142, the employer and, if applicable, the employer’s attorney or agent must promptly sign and date the appendix containing the requisite program assurances and obligations. A job contractor filing in the H-2B program will also receive its employer-client’s ETA Form 9142 Sections C and D page and Appendix B.1, issued on blue security paper, which the employer-client and, if applicable, the employer-client’s attorney or agent must promptly sign and date.

FAQ, which provides additional details

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6. Twenty-One Puerto Rican Companies Become ‘IMAGE’ Certified

Twenty-one businesses in Puerto Rico representing the automotive, marketing, healthcare, restaurant, security, agriculture, food, and telecommunications industries became the latest employers to partner with U.S. Immigration and Customs Enforcement’s (ICE) Homeland Security Investigations (HSI) to strengthen their hiring practices, reduce fraud, and ensure they employ a legal workforce.

The 21 companies officially became members of ICE’s Mutual Agreement between Government and Employers (IMAGE) on December 6, 2012. IMAGE, which began in 2006, is a voluntary program that allows private sector businesses to partner with ICE to reduce unauthorized employment and the use of fraudulent identity documents. As a result, ICE says, participating employers are able to maintain more secure, stable workforces.

As part of the IMAGE program, ICE provides private companies with education and training on proper hiring procedures, including use of employment screening tools such as E-Verify. IMAGE-certified companies also undergo an audit of their I-9 forms to ensure that current employees are eligible to work in the United States.

ANNOUNCEMENT, which includes details on the 21 companies

Puerto Rico employers interested in learning more about IMAGE membership may call the ICE IMAGE coordinator in San Juan at 787-729-5151. ICE IMAGE

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7. DHS Announces CNMI-Only Transitional Worker Limit

The Department of Homeland Security (DHS) announced that the fiscal year (FY) 2013 limit for Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Workers (CW-1) is 15,000. The Consolidated Natural Resources Act of 2008 (CNRA) requires an annual reduction of the number of CW-1s, the nonimmigrant category for these transitional workers.

USCIS noted in a related announcement that under the CNRA, the CNMI became part of the United States for purposes of immigration law on November 28, 2009. The CNRA included a transition period to eventually phase out the CNMI’s nonresident worker program and transition to the U.S. federal immigration system. The CW-1 transitional worker program allows foreign nationals who are ineligible for any existing employment-based nonimmigrant category under the Immigration and Nationality Act to work in the CNMI during the transition period. An annual reduction in the total number of CW-1s granted each year will lead to the elimination of the CW nonimmigrant classification by the end of the transition period, USCIS noted. The CW program will end on December 31, 2014, unless it is extended by the Secretary of Labor.

For FY 2012, the numerical limitation for CW-1s was set at 22,416, during which employers in the CNMI filed Form I-129CW petitions for more than 12,000 transitional workers. DHS said it has set the CW-1 limit for FY 2013 at 15,000 “to meet the CNMI’s existing labor market needs and provide opportunity for potential growth, while reducing the numerical limitation as required by the CNRA.” Petitions requesting a work start date in FY 2013 (between October 1, 2012, and September 30, 2013) will be counted toward the 15,000 limit.

This does not affect the status of current CW-1 workers unless their employer files for an extension of their current authorized period of stay or they seek to change CW-1 employers. The numerical limitation only applies to CW-1 principals and does not directly affect the status of a person currently holding CW-2 status as the spouse or minor child of a CW-1 nonimmigrant. However, CW-2 nonimmigrants may be indirectly affected because their status depends upon that of the principal CW-1.

ANNOUNCEMENT

RELATED FEDERAL REGISTER NOTICE

For more information and announcements about immigration benefits in the CNMI, see the CNMI Web page.

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8. Employment-Based Priority Dates Advance in Some Categories for January 2013

The latest Visa Bulletin from the Department of State’s Visa Office notes that there has been no change in EB-1 priority dates, which are Current. In the EB-2 category, China progressed 1.5 months, to December 8, 2007. There was no change in India, which remains at September 1, 2004, or in Mexico or the Philippines, which remain Current. In the EB-3 category, Mexico advanced 1.5 months, to February 1, 2007. There was no change in the Philippines in EB-3, which remains at August 15, 2006. However, for EB-3, China moved ahead by 2.75 months, to September 22, 2006, and India advanced by one week, to November 8, 2002.

LATEST VISA BULLETIN

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9. New Publications and Items of Interest

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.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.

A bulk order discounted rate of $35 per copy for orders of 10 or more books is available for the Special Edition through December 15. A percentage of the sale proceeds of the Special Edition goes to a nonprofit organization promoting immigration awareness and support. For more information, e-mail Lauren Anderson at lauren@greencardstories.com.

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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10. Member News

Cyrus Mehta has co-authored a new blog entry. “The Sweet Smell of Success: H-1B Visas for Entrepreneurs“.

Angelo Paparelli has published several new blog entries. ” ‘Bibles, Badges and Business’ Converge for Comprehensive Immigration Reform“. “The Senate Must Modify Its Filibuster Rules to Pass Comprehensive Immigration Reform“.

Stephen Yale-Loehr moderated a webinar hosted by Invest In the USA (IIUSA) on December 7, 2012, on the impact of an expected backlog in EB-5 visa numbers for immigrant investors from China. The webinar featured a presentation by Charles Oppenheim, Chief of the Visa Controls and Reporting Division at the U.S. Department of State. Mr. Oppenheim provided some background information about EB-5 visa numbers and limits generally, and suggested that Chinese EB-5 visa numbers might retrogress sometime in 2013 or 2014. Steve and others discussed the implications of a possible retrogression on individual EB-5 investors, their family members, the projects they invest in, and securities law compliance.

Over 100 people listened to the live webinar. A recording will be available soon on the IIUSA website.

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11. 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 numbersUSCIS 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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News from the Alliance of Business Immigration Lawyers Vol. 8, No. 12A • December 01, 2012

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Headlines:

1. House Passes STEM Bill; ‘Achieve Act’ Introduced in Senate, Congressional Hispanic Caucus Reacts; Obama, Dems Advocate Comprehensive Immigration Reform – The STEM bill would allocate visas to STEM graduates without increasing overall immigration, by eliminating the diversity visa program. Neither the STEM bill nor the Achieve Act are likely to survive in the Senate.

2. U.S. Mission in India Expands Interview Waiver Program – The U.S. embassy in New Delhi expects this expansion to affect thousands of visa applicants in India.

3. DACA Filings/Approvals Soar After Election; USCIS Releases Guidance for Employers, Filing Tips – USCIS has received more than 300,000 requests for DACA. Most applicants are from Mexico (212,514).

4. USCIS Expands e-Request Services – The Web-based tool allows users to ask about applications and petitions submitted to USCIS.

5. USCIS Holds Teleconference on I-601 Waivers – Beginning on December 5, 2012, applications for waivers of grounds of inadmissibility must be filed in the United States unless the applicant meets criteria allowing him or her to file at an international USCIS office.

6. Head of Law Firm Sentenced to Prison for Visa Fraud – Participants in the scheme to file at least 137 fraudulent employment-based visa petitions “buried” a portion of the profits by purchasing cemetery plots and grave monuments.

7. ABIL Global: Canada – Update on Federal Immigrant Investor Program and Federal Skilled Worker Program – Pauses on new applications under the two programs will continue until further notice.

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. House Passes STEM Bill; ‘Achieve Act’ Introduced in Senate, Congressional Hispanic Caucus Reacts; Obama, Dems Advocate Comprehensive Immigration Reform

The U.S. House of Representatives passed H.R. 6429, the “STEM Jobs Act of 2012,” by a 245-139 vote on November 30, 2012. The bill would allocate 55,000 immigrant visas for certain foreign graduates of advanced degree programs in science, technology, engineering, and mathematics (STEM). It would exclude students with degrees in biological and biomedical fields. Among other things, it also would eliminate the diversity visa (DV) program so that there would be no overall increase in the level of immigration.

Rep. Jeff Flake (R-Ariz.), said, “We should staple a green card to [foreign STEM graduates’] diplomas.” Rep. Darrell Issa (R-Cal.), who also voted in favor of the bill, said,”We need to break up the elephant into bite-size pieces. I want to break this up into passable bill by passable bill.”

H.R. 6429 is considered unlikely to pass in the Senate. Democrats said they support STEM visas but did not think the DV program should be eliminated and believe that STEM legislation should be part of a larger immigration reform package. Similarly, the Obama administration said in a statement that it “strongly supports” legislation to attract and retain foreign students who graduate with advanced STEM degrees, to establish a start-up visa for foreign-born entrepreneurs “to start businesses and create jobs,” and to “reform the employment-based immigration system to better meet the needs of the U.S. economy.” However, the administration said it does not support “narrowly tailored proposals that do not meet the President’s long-term objectives with respect to comprehensive immigration reform.” The statement advocated an approach that would “provide for attracting and retaining highly skilled immigrants and uniting Americans with their family members more quickly, as well as other important priorities such as establishing a pathway for undocumented individuals to earn their citizenship, holding employers accountable for breaking the law, and continuing efforts to strengthen the Nation’s robust enforcement system.”

Also, on November 27, 2012, Sens. Jon Kyl (R-Ariz.) and Kay Bailey Hutchison (R-Tex.) introduced the “Achieve Act,” S. 3639, which would allow certain undocumented youth to attain a visa. They would have to apply for employment authorization after they have completed higher education or served in the military. “We have to get this ball rolling … and this particular part of immigration reform seemed a logical place to begin,” Sen. Kyl said. The bill is more restrictive than the previously proposed DREAM Act and would limit eligibility to those who entered the United States under the age of 14, among other things. Sen. Hutchison also noted that the bill “doesn’t allow them to cut in line [for U.S. citizenship] in front of people who have come and abided by the rules of our laws today. It doesn’t keep them from applying under the rules today, but it doesn’t give them a special preference.” The Achieve Act is also considered unlikely to pass in the Senate.

The Congressional Hispanic Caucus rejected the Achieve Act, outlining nine principles that they said should be part of any effort toward comprehensive immigration reform: (1) requiring the estimated 11 million undocumented persons in the United States to register with the government, among other things, and “earn a path to permanent residency and eventual citizenship”; (2) reducing family backlogs to keep spouses, parents, and children together, including same-sex couples; (3) attracting “investors, innovators, and skilled professionals,” including those in STEM fields; (4) building on the DACA program and incorporating “DREAMers”; (5) including a “balanced, workable solution for the agriculture industry” that ensures that agricultural workers have a route to citizenship and employers have the workers they need; (6) providing legal avenues for foreign workers to fill gaps in the workforce, including labor rights, protection from discrimination, and a “reasonable path to permanency”; (7) ensuring enforcement that both protects the borders and fosters commerce; (8) establishing a “workable” employment verification system; and (9) ensuring that all workers “pay their fair share of taxes, fully integrate into our way of life and bear the same responsibilities as all Americans” and reaffirming “our shared belief that the Citizenship Clause of the Constitution is a fundamental freedom that must be preserved.”

STEM Bill Text and Additional Information

Statement on the STEM Jobs Act from Rep. Lamar Smith (R-Tex.), chairman of the House Judiciary Committee

Obama Administration’s Statement

Information on the Achieve Act, including the text of the bill

Congressional Hispanic Caucus’ Statement

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2. U.S. Mission in India Expands Interview Waiver Program

The U.S. Mission in India has announced expansion of the Interview Waiver Program (IWP), launched in March 2012, which allows qualified individuals to apply for additional classes of visas without being interviewed in person by a U.S. consular officer. The U.S. embassy in New Delhi expects this expansion to affect thousands of visa applicants in India.

Under the current IWP, Indian visa applicants who are renewing visas that are still valid or expired within the past 48 months may submit their applications for consideration for streamlined processing, including waiver of a personal interview, within the following visa categories:

  • Business/Tourism (B-1 and/or B-2)
  • Dependent (J-2, H-4, L-2)
  • Transit (C) and/or Crew Member (D) – including C-1/D
  • Children applying before their seventh birthday traveling on any visa class
  • Applicants applying on or after their 80th birthday traveling on any visa class

Under the expanded IWP, the following Indian applicants may also be considered for streamlined processing:

  • Children applying before their 14th birthday traveling on any visa class
  • Students returning to attend the same school and same program
  • Temporary workers on H-1B visas
  • Temporary workers on individual L-1A or individual L-1B visas

The renewal application must be within the same classification as the previous visa. If the previous visa is annotated with “clearance received,” however, that applicant is not eligible for a waiver of a personal interview.

Not all applications will be accepted for streamlined processing. As always, consular officers may interview any visa applicant in any category. Applicants who are renewing their visas may still need an appointment for biometrics (fingerprint and photograph) collection. All applicants must submit all required fees and the DS-160 application form.
The U.S. embassy in New Delhi said that this is “one of many steps the Department of State is taking to meet increased visa demand in India.” The embassy explained that in 2011, consular officers in India processed nearly 700,000 nonimmigrant visa applications, an increase of more than 11 percent over the previous year. Currently, applicants generally wait fewer than 10 days for visa interview appointments and spend less than one hour at U.S. consular facilities in India. In September 2012, the U.S. Diplomatic Mission to India implemented a new visa processing system throughout India that further standardizes procedures and simplifies fee payment and appointment scheduling through a new website.

For more details about procedures for submitting a renewal application, see HERE.

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3. DACA Filings/Approvals Soar After Election; USCIS Releases Guidance for Employers, Filing Tips

Following the results of the presidential election, the Obama administration released statistics showing that 53,273 undocumented persons have received relief as of November 15, 2012, under the deferred action for childhood arrivals (DACA) program. U.S. Citizenship and Immigration Services (USCIS) has received more than 300,000 such requests, of which the largest number by far are from Mexicans (212,514). The Immigration Policy Center estimates that approximately 1.8 million persons may be eligible.

USCIS noted that filing a request for consideration of deferred action for childhood arrivals involves several steps. You need to submit multiple forms, evidence and fees. Small mistakes in preparing your request could lead to it being rejected. USCIS released the following tips below to help avoid having your request rejected or delayed because of common filing errors:

1. Mail all forms together – You must mail the following forms in one package:

a. Form I-821D, Consideration of Deferred Action for Childhood Arrivals
b. Form I-765, Application for Employment Authorization
c. Form I-765WS, Worksheet

Read the mailing instructions to see where to mail the forms based on the state you live in. Remember to send it to the P.O. Box address if mailing through the U.S. Postal Service. All forms are available on www.uscis.gov for free. Do not pay for blank USCIS forms either in person or over the Internet.

2. Carefully review age guidelines before filing – If you have never been in removal proceedings, or your proceedings have been terminated, you must be at least 15 years of age or older at the time of filing.

You cannot be 31 or older as of June 15, 2012, to be considered for deferred action for childhood arrivals.

3. Write your name and date of birth the same way on each form – Variations in the way information is written can cause delays. For example, you should not write Jane Doe on one form and Jane E. Doe on another form. It is important to read all instructions on the forms carefully.

4. Sign your forms – You must sign both your Form I-821D and Form I-765. If someone helps you fill out the forms, that person must also sign both Form I-812D and Form I-765 in the designated box below your signature.

5. Use the correct version of Form I-765 – Always make sure you have the most recent form when submitting your request with USCIS. Review the USCIS Forms page to download the most recent version. You can download all USCIS forms and instructions for free at http://www.uscis.gov.

6. Use Form I-821D NOT Form I-821 – Form I-821D is used to request consideration of deferred action for childhood arrivals. Form I-821 is a different form used to apply for Temporary Protected Status, an entirely different process.

7. Do NOT e-file Form I-765 – Requests for consideration of deferred action cannot be e-filed. You must mail your package (Forms I-821D, I-765, I-765WS, evidence and fees) to the appropriate USCIS Lockbox.

8. Submit correct fees – The fee to request consideration of deferred action for childhood arrivals is $465 and cannot be waived. There are fee exemptions available only in limited circumstances. You may submit separate checks of $380 and $85, or one single check of $465.

9. Answer all questions completely and accurately – If an item is not applicable or the answer is “none,” leave the space blank. But do not leave date fields blank. See Tip #11, below. To ensure your request is accepted for processing, be sure to complete these required form fields:

  • Form I-821D: Name, Address, Date of Birth
  • Form I-765: Name, Address, Date of Birth, Eligibility Category

10. Provide all required supporting documentation and evidence –You must submit all required evidence and supporting documentation. These documents are required for USCIS to make a decision on your request. Please organize and label your evidence by the guideline it meets. USCIS may issue a request for evidence if additional information is needed to make a decision on your request.

11. Do not leave date or place of entry responses blank – You must fill in all fields related to dates and places of entry on Form I-821D. You may fill in your closest approximation of the date or place of entry if you do not know the exact information. You must enter dates in MM/DD/YYYY format.

12. Personal information to prove economic need – USCIS will consider whether you have an economic need to work by reviewing your personal current annual income, current annual expenses, and the current value of your assets. You do not need to include other household member’s financial information to establish your own economic necessity. It is not necessary to submit supporting documentation, though it will be accepted and reviewed if you choose to submit it.

13. If you make an error on a form, start over with a clean form – USCIS prefers that you type your answers into the form and then print it. If you are filling out your form by hand, use black ink. If you make a mistake, please start over with a new form. Scanners will see through white out or correction tape and this could lead to the form being processed as incorrect, and lead to processing delays or denial.

14. Review your entire request package – To ensure that your request is accepted for processing, it is important that you review your entire request package before you file with USCIS.

For more information on consideration of deferred action for childhood arrivals, visit HERE. If you have questions about filing a request, please call USCIS at 1-800-375-5283.

USCIS Guidance for Employers on DACA for Childhood Arrivals

USCIS Tips

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4. USCIS Expands e-Request Services

U.S. Citizenship and Immigration Services (USCIS) has expanded the services available via its e-Request system. The Web-based tool allows users to ask about applications and petitions submitted to USCIS. Users can now:

  • Create a service request for all forms to either inquire about the status of an application or petition if it is outside of the normal processing time or notify USCIS about an administrative error in a notice or document USCIS sent.
  • For Forms I-90 and N-400 only, ask about an Application Support Center appointment notice or other notice the user was expecting to receive.
  • Access services for individuals with disabilities (508 compliant).

To submit an e-Request, go to the USCIS e-Request home page and have the receipt number available.

USCIS Notice

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5. USCIS Holds Teleconference on I-601 Waivers

On November 13, 2012, U.S. Citizenship and Immigration Services (USCIS) held a teleconference to discuss the transition to centralized Lockbox filing of Form I-601, Application for Waiver of Grounds of Inadmissibility, filed by applicants outside the United States.

As background, on June 4, 2012, USCIS phased in a new requirement that I-601s and associated Forms I-212 and I-290B be filed and adjudicated in the United States. An exception was made for applications filed at the U.S. consulate in Ciudad Juarez, Mexico, for six months. Beginning December 5, 2012, I-601s and associated forms must be filed in the United States unless the applicant meets criteria allowing him or her to file at an international USCIS office. The criteria include circumstances such as applicants residing in Cuba, or applicants facing urgent issues such as a medical emergency, a threat to personal safety, being close to aging out of visa eligibility, or having adopted a child locally and needing to depart the country imminently.

Teleconference Notice, including a link to international USCIS offices

Memo Listing Exceptions

This new process is separate from the notice of proposed rulemaking that was announced on March 30, 2012, outlining a proposed process for provisional unlawful presence waivers. USCIS Announcement Concerning that Notice

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6. Head of Law Firm Sentenced to Prison for Visa Fraud

Joseph Wai-Man Wu, the head of East West Law Group, a former law firm in Los Angeles, California, was sentenced to 10 months in prison on November 15, 2012. For approximately 13 years, from 1996 to 2009, he and others in his firm filed at least 137 employment-based visa petitions fraudulently for nearly 100 clients.

They also set up almost a dozen shell companies as part of the scheme, and laundered a portion of the profits by purchasing cemetery plots and grave monuments. The clients paid from $6,000 to $50,000 each. “Our agents encounter a lot of unusual money laundering schemes, but this is the first time we’ve come across a case where the suspects sought to bury their profits by buying cemetery plots,” said Claude Arnold, special agent in charge for HSI Los Angeles.

Press Release

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7. ABIL Global: Canada – Update on Federal Immigrant Investor Program and Federal Skilled Worker Program

Federal Immigrant Investor Program

On July 1, 2012, Citizenship and Immigration Canada (CIC) imposed a moratorium on the Federal Immigrant Investor Program (FIIP) to reduce the existing large number of applications while the program is reviewed. This pause on new applications will continue until further notice from CIC.

In August 2012, CIC invited various stakeholders and the public to participate in an online consultation on improving the FIIP, including how such a program can best support Canadian economic priorities.

By way of background, the Economic Action Plan 2012 included reforms of business immigration programs to target more active investment for Canadian growth companies. In April 2012, the Minister of Citizenship, Immigration and Multiculturalism announced that CIC was considering whether it should use its authority under the amended Immigration and Refugee Protection Act (IRPA) to create small short-term programs that may have a great impact on Canada’s economy.

In response, until September 2012, CIC received numerous submissions from stakeholders and the public on how the Department could:

  • increase the economic benefit that immigrant investment capital brings to Canada;
  • attract experienced international investors with the skills and resources needed to ensure they integrate into Canada’s economy; and
  • develop efficient and cost-effective ways of delivering an investment program.

A summary of the results of the policy papers and recommendations is expected to be published on the CIC website in early 2013.

Federal Skilled Worker Program

On July 1, 2012, CIC also temporarily stopped accepting applications for the Federal Skilled Worker Program (FSWP). This temporary pause did not apply to those with a qualifying job offer or applying under the PhD stream. CIC will likely start accepting applications again when the revised FSWP selection criteria take effect. Proposed FSWP changes should come into force in early 2013.

For an application to be eligible for processing under FSWP, the applicant must include the results of his or her official language proficiency test and must fall into one of these categories:

1. Skilled workers with a valid offer of arranged employment; or

2. International students enrolled in a PhD program at a provincially or territorially recognized private or public post-secondary educational institution in Canada who:

– have completed at least two years of study toward a PhD

– are in good academic standing at the time they apply

– are not recipients of an award requiring them to return to their home country to apply their knowledge and skills, or

3. International students who graduated from a PhD program at a provincially or territorially recognized private or public post-secondary educational institution in Canada who:

– graduated no more than 12 months before the date their application is received

– did not receive an award that required them to return to their home country to apply their knowledge and skills (or did, but have satisfied the terms of the award).

A maximum of 1,000 applications from this category will be considered for processing each year. This will not be included in the total for any other cap. Applications will be considered in order they are received. The first cap year for the PhD stream began on November 5, 2011.

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8. New Publications and Items of Interest

Online resource center launched for USCIS Entrepreneurs in Residence initiative. U.S. Citizenship and Immigration Services (USCIS) has launched a new online resource center, “Entrepreneur Pathways,” for the agency’s Entrepreneurs in Residence initiative. The resource center provides “an intuitive way to navigate the immigration process,” and information on “future opportunities for engagement with the entrepreneurial community.” It currently contains three sections: Getting Started, Visa Guide, and Outreach. An article on the resource center is available on the White House blog. USCIS Blog’s Announcement. Resource Center.

Study on international mobility of foreign recipients of U.S. doctorates. The National Science Foundation released the results of a study in October 2012, “International Mobility and Employment Characteristics Among Recent Recipients of U.S. Doctorates.” The study noted, among other things, that overall, 20.4% of foreign-citizen graduates with U.S. doctoral degrees reported working or living in their country of origin in 2008, whereas 96.6% of U.S. citizen graduates reported working or living in the United States. Among foreign graduates who did not return to their country of origin, the United States was the most popular destination, with 88.9% reporting living in the United States. For this group, the European Union was the second most popular destination (3.7%), and Asia and Canada tied for third (2.7% and 2.6%, respectively). Report

EB-5 stakeholder engagement. U.S. Citizenship and Immigration Services (USCIS) invites interested parties to participate in a conversation with USCIS Director Alejandro Mayorkas regarding the EB-5 immigrant investor program on Monday, December 3, 2012, from 2 p.m. to 4 p.m. (Eastern). During the engagement, Director Mayorkas will discuss EB-5 policy and procedural issues and take questions from participants.
Participants may attend this engagement either in person or by teleconference. However, those attending via phone will be in listen-only mode. If you wish to attend in person, attendance is limited to the first 100 people who register. To register, email the Public Engagement Division at Public.Engagement@uscis.dhs.gov.

  • If you plan to attend in person, reference “EB-5 Conversation – In Person”
  • If you plan to attend by phone, reference “EB-5 Conversation – Phone”

Following registration, USCIS will confirm your attendance in person or by telephone. If you are attending in person, bring photo identification and arrive at least 15 minutes early to allow extra time to complete the security process. If you are attending by phone, use the information below to join the session.

Call-in Number: 1-888-324-8192

Passcode: EB5

Invitation

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.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.

A bulk order discounted rate of $35 per copy for orders of 10 or more books is available for the Special Edition through December 15. A percentage of the sale proceeds of the Special Edition goes to a nonprofit organization promoting immigration awareness and support. For more information, e-mail Lauren Anderson at lauren@greencardstories.com.

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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9. Member News

Charles Kuck has published a new blog entry. “The Achieve Act is Bad for Kids“.

Cyrus Mehta has published several new blog entries. “US Mission in India Expands Interview Waiver Program: Does this Bode Well for H-1B and L Visa Applicants?” “New Portal Welcomes Entrepreneurs to the USA: But Will This Change the Culture of ‘No’ at USCIS” He also has co-authored a new blog entry. “Where Do We Go From Here: The New Face Of Comprehensive Immigration Reform”

Cyrus Mehta authored an article that was published in Quartz, “A Trade War Wages Across U.S. Consulates in India Over H-1B Visas. Is a Truce in Sight?”

Angelo Paparelli has published several new blog entries. “Immigration By Chance – Save the DV Green Card Lottery” “Reforming Immigration ‘With Liberty and Justice for All’”

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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

Visa application wait times for any post

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