News from the Alliance of Business Immigration Lawyers Vol. 9, No. 1A • January 01, 2013
1. USCIS To Implement New Immigrant Visa Fee February 1 – USCIS will begin collecting a new fee of $165 from foreign nationals seeking permanent residence in the United States.
2. USCIS Launches New E-Verify Employers Search Tool – The new online tool allows the user to find employers and federal contractors currently enrolled in E-Verify.
3. USCIS Issues Operational Guidance for EB-5 Cases Involving Tenant Occupancy – The long-awaited memorandum is intended to facilitate adjudication of cases involving issues related to the “tenant-occupancy” methodology for establishing job creation in EB-5 cases.
4. ICE Announces Removal Numbers, Issues New National Detainer Guidance, Discontinues State/Local 287(g) Partnership Agreements – Critics said the 287(g) immigration enforcement partnership program with state and local entities diverted resources away from crime-fighting and resulted in profiling of Latinos.
5. USCIS Extends TPS Re-Registration Period for Haitians – USCIS extended the re-registration period through January 29, 2013.
6. U.S., Canada Sign Visa and Immigration Info-Sharing Agreement – The agreement will enable Canada and the United States to share information from third-country nationals who apply for a visa or permit to travel to either country.
7. USCIS To Close Panama City Field Office – The Panama City Field Office had jurisdiction over USCIS applications and petitions from Panama, Ecuador, Colombia, Venezuela, Guyana, French Guiana, and Suriname.
8. ABIL Global: Netherlands – The recent change of government in the Netherlands has affected the country’s immigration regulations.
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
1. USCIS To Implement New Immigrant Visa Fee February 1
On February 1, 2013, U.S. Citizenship and Immigration Services (USCIS) will begin collecting a new fee of $165 from foreign nationals seeking permanent residence in the United States. This new fee was established in USCIS’s final rule adjusting fees for immigration applications and petitions announced on September 24, 2010.
The agency said it has worked closely with the Department of State (DOS) to implement the new fee, which will allow USCIS to recover the costs of processing immigrant visas in the United States after immigrant visa-holders receive their visa packages from DOS. This includes staff handling and the cost of producing and delivering the permanent resident card.
Applicants will pay online through the USCIS website after they receive their visa packages from DOS and before they leave for the United States. DOS will provide applicants with information on how to submit the payment when they attend their consular interviews. The new fee is in addition to fees charged by DOS associated with an individual’s immigrant visa application.
USCIS processes approximately 36,000 immigrant visa packages each month. Prospective adoptive parents whose child will enter the United States under the Orphan or Hague processes are exempt from the new fee.
PRESS RELEASE announcing new fee
RELATED FEDERAL REGISTER NOTICE, published at 77 Fed. Reg. 74490 (Dec. 14, 2012)
2. USCIS Launches New E-Verify Employers Search Tool
U.S. Citizenship and Immigration Services (USCIS) has launched a new E-Verify Employers Search Tool that allows the user to find employers and federal contractors currently enrolled in E-Verify.
The search tool includes the capability to filter, sort, and export employer results. It replaces the lists of E-Verify employers and federal contractors that previously appeared on the E-Verify website. It includes currently enrolled employers and federal contractors through December 15, 2012. Federal contractors self-report whether their contracts have the E-Verify FAR clause. The search tool includes the business name, federal contractor identifier, federal contract employee verification, city, cstate, zip code, and workforce size. The search tool includes only employers and federal contractors that have self-reported that their company has five or more employees.
E-VERIFY EMPLOYERS SEARCH TOOL, and links to the User Guide and questions and answers
3. USCIS Issues Operational Guidance for EB-5 Cases Involving Tenant Occupancy
U.S. Citizenship and Immigration Services (USCIS) released long-awaited operational guidance for EB-5 cases involving tenant occupancy on December 20, 2012. USCIS said the memorandum is intended to facilitate adjudication of cases involving issues related to the “tenant-occupancy” methodology for establishing job creation in EB-5 cases. The agency noted that the guidance “has been formulated following careful internal deliberation [and] consultation with sister government agencies,” along with a “review of responses to requests for evidence (RFEs) issued in February 2012 to a number of outstanding Regional Center applicants who relied on the tenant-occupancy methodology.” USCIS will apply the guidance to pending cases and cases filed on or after December 20, 2012, that rely on the tenant-occupancy methodology. The guidance does not rescind or supersede other EB-5 guidance.
USCIS noted that among the issues raised in the February 2012 RFEs, USCIS sought evidence that the projected jobs attributable to prospective tenants (which would occupy the commercial space created by the EB-5 capital) would represent newly created jobs, not jobs that the tenant had merely relocated. The agency said that such determinations are necessary to assess whether there is a “reasonable causal link” between the EB-5 enterprise and the job creation that would allow for the attribution of the tenant jobs to the EB-5 enterprise. The RFEs “suggested the types of evidence applicants could submit to make this showing.”
In regional center cases that rely on tenant occupancy models, USCIS requires evidence that the claimed jobs result, directly or indirectly, from the economic activity of the EB-5 commercial enterprise. With respect to indirect job creation, applicants and petitioners must project the number of newly created jobs that would not have been created but for the economic activity of the EB-5 commercial enterprise. “In making that projection, they are to use economically and statistically valid forecasting tools,” USCIS noted.
The agency said that whether an applicant or petitioner has demonstrated that an EB-5 enterprise caused the creation of indirect tenant jobs requires case-by-case determinations and generally also requires an evaluation of the verifiable detail provided and the overall reasonableness of the methodology as presented. The guidance memo gives additional details about the types of evidence and approaches applicants and petitioners may use, and discusses the appropriate language in approval notices regarding the assumptions underlying the approval.
USCIS said it will issue separate guidance on crediting jobs when more than one EB-5 entity may be seeking credit for an identical position.
4. ICE Announces Removal Numbers, Issues New National Detainer Guidance, Discontinues State/Local 287(g) Partnership Agreements
U.S. Immigration and Customs Enforcement (ICE) Director John Morton announced on December 21, 2012, the agency’s fiscal year (FY) 2012 year-end removal numbers, highlighting trends that underscore the administration’s focus on removing from the country convicted criminals and other individuals that fall into priority areas for enforcement.
To further focus ICE resources on the most serious criminal offenders, ICE also issued new national detainer guidance on the same day. This guidance limits the use of detainers to individuals who meet the department’s enforcement priorities and restricts the use of detainers against individuals arrested for minor misdemeanor offenses, such as traffic offenses and other petty crimes, to ensure that available resources are focused on apprehending felons, repeat offenders, and other ICE priorities. The new guidance applies to all ICE enforcement programs, including the federally administered Secure Communities.
ICE priorities include identifying and removing those who have committed crimes, pose threats to national security, have crossed the border recently without authorization, and/or repeatedly violate immigration law. Overall in FY 2012, ICE’s Office of Enforcement and Removal Operations removed 409,849 individuals. Of these, approximately 55 percent, or 225,390, of the people removed were convicted of felonies or misdemeanors. This was almost double the number of criminals removed in FY 2008. The convictions included 1,215 for homicide; 5,557 for sexual offenses; 40,448 for crimes involving drugs; and 36,166 for driving under the influence.
In addition, ICE has also decided not to renew any of its agreements with state and local law enforcement agencies that operate task forces under the 287(g) program. ICE said it has concluded that “other enforcement programs, including Secure Communities, are a more efficient use of resources for focusing on priority cases.” The 287(g) program allowed a state or local law enforcement entity to enter into a partnership with ICE to receive delegated authority for immigration enforcement within its jurisdiction. Critics said it diverted resources away from crime-fighting and resulted in profiling of Latinos. As of October 16, 2012, there were 57 such agreements.
5. USCIS Extends TPS Re-Registration Period for Haitians
On December 27, 2012, U.S. Citizenship and Immigration Services (USCIS) announced an extension of the re-registration period for Haitian nationals who have already been granted temporary protected status (TPS) and seek to maintain that status for an additional 18 months. Because of the impact Hurricane Sandy has had on regions where Haitians reside, USCIS extended the re-registration period through January 29, 2013.
USCIS strongly encourages Haitian TPS beneficiaries to apply as soon as possible. Under this extension, USCIS also will accept applications from eligible individuals who have already applied after the close of the re-registration period on November 30, 2012, and will continue to accept applications through January 29, 2013.
Approximately 60,000 Haitian nationals (and people having no nationality who last habitually resided in Haiti) are eligible for TPS re-registration. TPS is not available to Haitian nationals who entered the United States after January 12, 2011. The initial 60-day re-registration period was established after the Department of Homeland Security (DHS) announced in October 2012 an 18-month extension of the TPS designation of Haiti, from January 23, 2013, through July 22, 2014.
In the October notice, DHS also automatically extended by six months, through July 22, 2013, the validity of employment authorization documents (EADs) for eligible Haitian TPS beneficiaries. USCIS said this will allow sufficient time for eligible TPS beneficiaries whose re-registration is timely to receive an EAD without any lapse in employment authorization.
To re-register, TPS beneficiaries must submit Form I-821, Application for Temporary Protected Status, and Form I-765, Application for Employment Authorization. Individuals seeking to re-register do not need to pay the I-821 application fee. However, a biometric services fee (or a fee-waiver request) is required for all re-registrants 14 years of age and older. All re-registrants seeking employment authorization through July 22, 2014, must submit the Form I-765 fee (or a fee-waiver request). Re-registrants who do not want employment authorization are not required to submit the I-765 fee but must still submit a completed I-765. Failure to submit the required filing fees or a properly documented fee-waiver request will result in the rejection of the re-registration application, USCIS said.
RELATED NOTICE published in the Federal Register, which contains more details on the re-registration period’s extension
6. U.S., Canada Sign Visa and Immigration Info-Sharing Agreement
The United States and Canada signed the U.S.-Canada Visa and Immigration Information-Sharing Agreement on December 13, 2012. The agreement will enable Canada and the United States to share information from third-country nationals who apply for a visa or permit to travel to either country. The Department of State said the agreement is intended to help both countries confirm applicants’ identities and identify risks and inadmissible persons at the earliest opportunity.
The agreement authorizes development of arrangements under which the United States may send an automated request for data to Canada, such as when a third-country national applies to the United States for a visa or claims asylum. Such a request would contain limited information, such as the name and date of birth in the case of biographic sharing, or an anonymous fingerprint in the case of biometric sharing. If the identity matches that of a previous application, immigration information may be shared, such as whether the person previously was refused a visa or removed from the other country. The same process would apply in reverse when a third-country national applies to Canada for a visa or claims asylum. Biographic immigration-information sharing is set to begin in 2013, and biometric sharing in 2014.
Under the agreement, information will not be shared regarding U.S. or Canadian citizens or permanent residents.
7. USCIS To Close Panama City Field Office
U.S. Citizenship and Immigration Services (USCIS) announced on December 18, 2012, that it will permanently close its field office in Panama City, Panama, on February 1, 2013.
The Panama City Field Office had jurisdiction over USCIS applications and petitions from Panama, Ecuador, Colombia, Venezuela, Guyana, French Guiana, and Suriname. After February 1, 2013, these countries will be in the jurisdiction of existing USCIS field offices, as follows:
- Ecuador, Colombia, Venezuela, Guyana, French Guiana, and Suriname will be in the jurisdiction of the USCIS Field Office in Lima, Peru.
- Panama will be in the jurisdiction of the USCIS Field Office in San Salvador, El Salvador.
After February 1, 2013, applications or petitions previously accepted at the Panama City Field Office should be filed as directed in the announcement.
8. ABIL Global: Netherlands
The recent change of government in the Netherlands has affected the country’s immigration regulations.
A proposal to amend the Dutch Nationality Act will be withdrawn, the government announced on November 27, 2012. The proposal was sharply criticized, particularly its provisions to further reduce dual nationality. The current law already generally prohibits dual nationality, but applicants who are married to a Dutch person were exempt, as were Dutch nationals who acquire the nationality of another country and are married to a person of that nationality. Other measures that will not go through now include the introduction of an income threshold and a qualification requirement (at least two years of work experience in the Netherlands or at least two years of vocational qualification in the Netherlands).
Also, as of January 1, 2013, the financial penalties for non-compliance with the Employment of Foreigners Act (EFA) have increased drastically. Companies employing foreigners without the required work permit were previously fined € 8,000 per employee. This will be raised to
€ 12,000. In case of a second offense within five years, this amount is raised by 100% to
€ 24,000 per employee (previously two years), or € 36,000 per employee if the EFA is violated for the third time within the five-year period. The company can also be shut down for up to three months if three offenses occur within five years, provided that the company has been warned in advance about the possibility of being shut down.
There is better financial news for family reunification applicants. Filing fees are reduced considerably as of January 2013. The reduction is a direct consequence of a long-pending complaint of the European Commission against the Netherlands. The Court of Justice of the European Union (CJEU) ruled on April 26, 2012 (C-508/10) that the government fee of € 401 for a European Community long-term resident permit is “excessive and disproportionate.” The Dutch High Administrative Court followed this ruling in a judgment of October 9, 2012, on the Family Reunification Directive, applying the same principles of EU law as the CJEU. In response to this ruling, the Netherlands’ State Secretary for Security and Justice announced that the government fee for family reunification would be reduced from € 1,550 to € 225 for visa nationals, and from € 1.250 to € 225 for visa-exempted nationals. The government fee for an EU Blue Card remains at € 750. Because the EU Blue Card is also based on an EU Directive, it could be argued that this amount is also “excessive and disproportionate.”
In other news, some important restrictions on family reunification were introduced on October 1, 2012, of which the most remarkable was the abolition of conjugal partner immigration (with the exception of couples who are not allowed to marry according to the laws of the country where they live). This was introduced only days before the former government was replaced by the current one, and when the newly elected Parliament had already spoken out against such restrictions. This political gambit has not yet led to a clear announcement that the measures will be withdrawn or to continued opposition in Parliament. It remains to be seen if these measures will be maintained.
9. New Publications and Items of Interest
Immigration of temporary lower-skilled workers. The Congressional Research Service published “Immigration of Temporary Lower-Skilled Workers: Current Policy and Related Issues” on December 13, 2012. The report discusses current guest worker programs, focusing on the H-2A and H-2B visas. It also covers the Summer Work Travel (SWT) program, the largest of several programs under the J-1 visa for participants in work- and study-based exchange visitor programs. The report notes that the SWT program is particularly relevant because participants work largely in unskilled jobs, including H-2B-like seasonal jobs at resorts and amusement parks.
New SEVP brochure. U.S. Immigration and Customs Enforcement (ICE) has released a new brochure on the Student and Exchange Visitor Program (SEVP). The brochure provides information for schools and students on school certification and recertification, SEVIS, the SEVP Response Center and Help Desk, Study in the States, ICE.gov, stakeholder conferences, the SEVP Analysis and Operations Center, and the SEVP Policy Team.
Foreign Labor Certification Annual Report for FY 2011. The Department of Labor has released the 2011 Foreign Labor Certification Annual Report, which presents information on the prevailing wage determination process, permanent labor certification, and temporary nonimmigrant labor certification for FY 2011. The report also contains state employment-based labor certification profiles, information on STEM-related occupations in the labor certification programs, H-2A agricultural certification statistics, and employment-based immigration profiles by country.
Several ABIL members co-authored and edited the 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 issues.
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 six 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 and was a finalist for the International Photography Awards. The writer, Saundra Amrhein, was nominated as a finalist on the short list for the 2011 Santa Fe Writers Project Literary Awards. Green Card Stories is also featured on National Public Radio’s photo blog.
For more information, e-mail Lauren Anderson at firstname.lastname@example.org or see the Green Card Stories website.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL blog.
10. Member News
Cyrus Mehta has published a new blog entry. “Can Piers Morgan Be Deported For His Comments On Gun Control?”
Angelo Paparelli has published a new blog entry. “Rethinking Immigration: Stop the Alienation of Affection”
Angelo Paparelli has also announced the 2012 Nation of Immigrators Awards (“IMMIs”)
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 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