News from the Alliance of Business Immigration Lawyers Vol. 9, No. 2B • February 15, 2013
Headlines:
1. House, Senate Hold Hearings; President Weighs in on Immigration Reform in State of the Union Address – Recent House of Representatives and Senate hearings focused on immigration reform. Also, President Obama included immigration reform issues in his State of the Union Address.
2. H-1B Filing Starts April 1 – Companies should prepare to file H-1B petitions, and evaluate their anticipated hiring needs for H-1B professionals for the 12-month period beginning on October 1, 2013.
3. USCIS Announces Forms Improvement Initiative – Among other things, the agency is publishing many forms in a two-column, Adobe fillable format that restricts incorrect entries and provides informational pop-up boxes to assist users.
4. OFLC Issues FAQs on H-2A Temporary Agricultural Foreign Labor Certification Program – The FAQs include information on pre-filing; filing; job offers, assurances, and obligations; rates of pay; post-certification; labor certification fee requirements and processes; labor certification determinations; special procedures; H-2A labor contractors; and positive recruitment and hiring of U.S. workers.
5. New Publications and Items of Interest – New Publications and Items of Interest
6. Member News – Member News
7. Government Agency Links – Government Agency Links
Details:
1. House, Senate Hold Hearings; President Weighs in on Immigration Reform in State of the Union Address
Recent House of Representatives and Senate hearings focused on immigration reform. Also, President Obama included immigration reform issues in his State of the Union Address.
House hearing. On February 5, 2013, the House of Representatives’ Judiciary Committee held a hearing on “America’s Immigration System: Opportunities for Legal Immigration and Enforcement of Laws Against Illegal Immigration.” Rep. Bob Goodlatte (R-Va.), chairman of the committee, said that additional hearings on this topic would take place in the Immigration and Border Security Subcommittee.
Witnesses included Vivek Wadhwa, Director of Research, Pratt School of Engineering, Duke University; Michael Teitelbaum, Senior Advisor, Alfred P. Sloan Foundation and Wertheim Fellow, Harvard Law School; Puneet S. Arora, Vice President, Immigration Voice; Julian Castro, Mayor, San Antonio, Texas; Julie Myers Wood, President, Guidepost Solutions LLC; Chris Crane, President, National Immigration and Customs Enforcement Council 118, American Federation of Government Employees; Jessica Vaughan, Director of Policy Studies, Center for Immigration Studies; and Muzaffar Chishti, Director, Migration Policy Institute’s office at New York University Law School.
Mr. Wadhwa noted that foreign students graduating from U.S. colleges and universities have difficulty in finding jobs because employers have difficulty in getting H-1B visas. Those graduates who are lucky enough to get a job and a visa and who decide to make the U.S. their permanent home find that it can take years—sometimes more than a decade—to get a green card, he said. “If they have ideas for building world-changing technologies and want to start a company, they are usually out of luck, because it is not usually possible for people on H-1B visas to work for the companies they might start.” Not surprisingly, Mr. Wadhwa said, many are getting frustrated and returning home: “We must stop this brain drain and do all we can to bring more engineers and scientists here.” He recommended (1) increasing the numbers of green cards available to H-1B holders; (2) allowing spouses of H-1B holders to work; (3) targeting immigration based on required skills; (4) allowing H-1B holders to change jobs without requiring sponsorship renewal; (5) extending the term of optional practical training for foreign students from one to four years; (6) instituting a startup visa; and (7) removing the country caps on permanent residence applications.
Mayor Castro recommended further strengthening border security; streamlining the legal immigration process “so that law-abiding companies can get the workers they need in this 21st century global economy”; and creating a path to citizenship “to bring the estimated 11 million undocumented immigrants in this country out of the shadows and into the full light of the American Dream.” He said that “outdated visa allocations” that separate family members for years “make no sense,” and that companies who want to play by the rules are sometimes “handcuffed by rigid employment ceilings and burdensome regulations.” He noted that as global competition increases, American companies watch U.S.-trained engineers, nurses, and entrepreneurs “leave in frustration only to invent new products, heal the sick and bring new innovations to other countries.” Mayor Castro also lamented “DREAMers” who were brought to the United States as children but remain in legal limbo.
Ms. Vaughan said the most important responsibility of the U.S. government is to secure the borders. She said that the “most conspicuous void” in immigration law enforcement, however, has been in the workplace. Among other things, she recommended “[r]outine, frequent and thorough enforcement [that] discourages illegal workers by creating an expectation that they could be subject to arrest and removal at any time.”
Mr. Chishti recommended, among other things, establishing a nonpartisan commission, called for by the Independent Task Force on Immigration and America’s Future (convened by the Migration Policy Institute), that would make recommendations to Congress every year or two for adjusting immigration levels “based on analyses of labor market needs, unemployment patterns, and changing economic and demographic trends.” He noted that the task force also recommended creating a provisional worker visa to bridge the “frequently artificial” distinction between temporary and permanent immigration and “build a system that is more closely aligned with how migration flows and labor markets work in practice.” The commission would recommend the number of provisional workers to be admitted every year. Such provisional workers in all occupations would be allowed to enter the country sponsored by employers and work for two renewable three-year periods. They would be allowed to change employers after an initial period, and could bring family members. Over time, they could be eligible to adjust status to permanent residence. Mr. Chishti also suggested testing a variety of identity verification options. Among other things, he recommended that the Department of Homeland Security empanel a group of employer and worker representatives, and other stakeholders, to help it monitor E-Verify and advise on its progress during various stages of enrollment.
Senate hearing. The Senate Judiciary Committee held a hearing on comprehensive immigration reform on February 13, 2013. Witnesses included Janet Napolitano, Secretary of Homeland Security; Jose Vargas, Founder, Define American; Jessica Vaughan, Director of Policy Studies, Center for Immigration Studies; Steve Case, Chairman and CEO, Revolution, and Co-Founder, America Online; Chris Crane, President, National Immigration and Customs Enforcement Council 118 of the American Federation of Government Employees; and Janet Murguía, President and CEO, National Council of La Raza. Sens. Ted Cruz (R-Tex.), Mazie Hirono (D-Haw.), and Patrick Leahy (D-Vt.) submitted statements.
Sen. Leahy opened the hearing by noting that “[m]ost importantly, comprehensive immigration reform must include a fair and straightforward path to citizenship for those “dreamers” and families who have made the United States their home — the estimated 11 million undocumented people in the United States.” He said he is “troubled by any proposal that contains false promises in which citizenship is always over the next mountain.” Sen. Leahy noted that in Vermont, immigration “has promoted cultural richness through refugee resettlement and student exchange, economic development through the EB-5 Regional Center program, and tourism and trade with our friends in Canada. Foreign agricultural workers support Vermont’s farmers and growers, many of whom have become a part of farm families that are woven into the fabric of Vermont’s agricultural community.” He said that President Obama “has a comprehensive proposal that he has deferred sending to us at the request of Senators working to develop their own legislation.”
Mr. Case said the United States did not become the world’s leading economy by luck or accident. He noted that pioneering immigrant entrepreneurs, beginning with the country’s earliest settlers, took a risk hoping to turn dreams into business, and their startup businesses became primary drivers of our economic growth. He noted that U.S. Steel, Pfizer, Kraft Foods, Honeywell, AT&T, Yahoo, and Goldman Sachs were all started by immigrants. Today, he said, 40 percent of Fortune 500 companies in the United States were started by immigrants or the children of immigrants, employing 10 million people across the globe and earning $4 trillion in revenue. Of the 10 most valuable brands globally, he said, seven of them come from U.S. companies founded by immigrants or their children, and in the past 15 years, immigrants founded one-quarter of U.S. venture-backed public companies. He said statistics show that immigrants are almost twice as likely as U.S.-born workers to start a company. Between 1995 and 2005, he noted, half of Silicon Valley startups had an immigrant founder. In 2005 alone, those businesses achieved $52 billion in sales supporting 400,000 jobs. In 2011, he said, more than three-quarters of the patents filed at the top ten patent-producing U.S. schools had an immigrant inventor. Of the 1,600 computer science PhD graduates from U.S. universities in 2010, 60 percent were foreign students, Mr. Case noted. He added that “this is not just about technology companies.” Mr. Case said that when Hamdi Ulukaya, an immigrant from Turkey, told friends that he was going to start a yogurt company in upstate New York in 2005, they advised against the idea, but Hamdi was adamant. He hired four employees to begin packaging yogurt by hand. Eight years later Chobani Yogurt generates $1 billion in sales, has hired 1,500 American workers, and is expanding operations across the country.
Ms. Murguía said that “if we are to restore the rule of law, the single most essential element of immigration reform is an earned legalization program with a clear, achievable roadmap to citizenship—not because enforcement is unimportant, but because enforcement is all we have done thus far, and restoring the rule of law requires both elements.” She noted that the “continuation of a situation where we collectively nod and wink because our society benefits from [undocumented] labor is unacceptable. When our laws don’t reflect reality, reality will win every time.”
Mr. Crane remarked on low employee morale at U.S. Immigration and Customs Enforcement. Out of 291 federal agencies, he said, only 12 ranked lower than ICE in employee morale and job satisfaction, according to the results of a survey that included managers, officers, agents, and administrative personnel. Among other things, he blamed confusion among ICE employees about who they can or cannot arrest and which federal laws they should enforce. Among other things, he claimed that undocumented aliens in jail are being released by claiming they qualify under Deferred Action for Childhood Arrivals without being required to provide any documentation.
State of the Union. On February 12, 2013, President Barack Obama delivered his first State of the Union address of his second term in office. On the topic of immigration reform, he noted that the U.S. economy “is stronger when we harness the talents and ingenuity of striving, hopeful immigrants. And right now, leaders from the business, labor, law enforcement, faith communities — they all agree that the time has come to pass comprehensive immigration reform.” Real reform, he said, means:
strong border security, and we can build on the progress my administration has already made — putting more boots on the Southern border than at any time in our history and reducing illegal crossings to their lowest levels in 40 years. Real reform means establishing a responsible pathway to earned citizenship — a path that includes passing a background check, paying taxes and a meaningful penalty, learning English, and going to the back of the line behind the folks trying to come here legally. And real reform means fixing the legal immigration system to cut waiting periods and attract the highly skilled entrepreneurs and engineers that will help create jobs and grow our economy.
President Obama noted that bipartisan groups in both chambers were “working diligently” to draft a bill. “Send me a comprehensive immigration reform bill in the next few months, and I will sign it right away,” he said.
WITNESS TESTIMONY FROM THE HOUSE HEARING
TESTIMONY FROM THE SENATE HEARING
STATE OF THE UNION ADDRESS TRANSCRIPT
2. H-1B Filing Starts April 1
The Alliance of Business Immigration Lawyers (ABIL) reminds clients that the H-1B filing deadline is April 1, 2013.
Companies should prepare to file H-1B petitions, and evaluate their anticipated hiring needs for H-1B professionals (specifically, those requiring initial H-1B visas) for the 12-month period beginning on October 1, 2013. That is the date on which new H-1B visas become available under the annual cap. Employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, so April 1, 2013, signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached. The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (master’s or higher) from a U.S. university.
The H-1B cap for fiscal year 2013 was reached in June 2012. The pace of hiring this year means that the demand for new H-1B workers could result in the new cap being reached sometime in April. As in past years, some foreign nationals are not subject to the H-1B cap, including individuals who already have been counted toward the cap in a previous year and have not been outside the United States subsequently for one year or more. Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities are exempt from the H-1B cap. All other employers should be aware of the H-1B cap.
ABIL recommends that clients keep their ABIL attorney apprised of all new hires needing H-1B status before October 1, 2014. Examples would include F-1 students hired with optional practical training that expires before April 1, 2014, or current L-1B nonimmigrants who will have spent five years in that status as of any date before October 1, 2014.
3. USCIS Announces Forms Improvement Initiative
U.S. Citizenship and Immigration Services (USCIS) recently announced improvements to its online forms. Among other things, the agency is publishing many forms in a two-column, Adobe fillable format. USCIS said that when completed electronically, this format restricts incorrect entries and provides informational pop-up boxes to assist users.
Other changes include:
- Including plain-language, comprehensive instructions in several naturalization forms;
- Centralizing filing locations at USCIS Lockbox facilities. Beginning in February 2013, those filing Form N-470, Application to Preserve Residence for Naturalization Purposes, should mail their applications to the Dallas Lockbox facility;
- Publishing high-volume forms with 2D barcode technology. The barcode at the bottom of the page will store the data entered on the form via a computer. USCIS will then be able to scan the information from the barcode and upload it directly to USCIS systems;
- Enhancing Web content, including posting filing addresses and detailed fee information on forms’ landing pages.
LATEST FEE SCHEDULE
Fee information is also available in the instructions to forms and in detailed fee charts on many form landing pages.
4. OFLC Issues FAQs on H-2A Temporary Agricultural Foreign Labor Certification Program
The Office of Foreign Labor Certification (OFLC) of the Department of Labor’s Employment and Training Administration recently released rounds 7 and 8 of its FAQs on the 2010 final rule on the H-2A temporary agricultural foreign labor certification program.
Round 7 FAQ. The round 7 FAQ includes information on pre-filing; filing; job offers, assurances, and obligations; rates of pay; post-certification; labor certification fee requirements and processes; and labor certification determinations.
Among other things, the FAQ notes that dairy farmers who perform milking operations are not able to qualify for an H-2A labor certification. OFLC explained that to qualify, the employer’s need must be seasonal. OFLC said it considers each employer’s specific circumstances on a case-by-case basis, but that the majority of dairy activities, and milk production in particular, “are year-round and therefore cannot be classified as either temporary or seasonal.”
The FAQ also notes that nonpayment or untimely payment (later than 30 calendar days after the date of certification) of H-2A labor certification fees may be considered a substantial violation and subject the employer to debarment from the H-2A program.
OFLC noted that when the prevailing wage rate for a specific crop in a specific state changes after a certification has been granted, the agency posts the new prevailing wage rate, including the effective date, on its website in the Agricultural On-Line Wage Library (AOWL). Also, the Chicago National Processing Center (NPC) sends a letter to all potentially affected employers notifying them of the change. Because OFLC receives new wage findings from states for different crops/occupations on a rolling basis, it encourages employers to periodically check the AOWL to ensure that they are paying the appropriate required wage throughout the certified period of employment.
Round 8 FAQ. The round 8 FAQ includes information on special procedures (such as for employers engaged in itinerant custom combine activities); pre-filing; filing; job offers, assurances, and obligations, including rates of pay, pre-employment costs, and reimbursements; H-2A labor contractors; and positive recruitment and hiring of U.S. workers.
Among other things, the FAQ notes that an employer may request a pre-occupancy housing inspection well in advance of its date of need. Early contact with the state workforce agency (SWA) will provide the employer with time to resolve potential housing compliance issues without affecting the issuance of the temporary labor certification, OFLC noted. An employer is not required to submit proof that its housing complies with applicable program requirements at the time of filing its Application for Temporary Employment Certification (ETA Form 9142), but OFLC said the Department cannot grant a temporary labor certification without proof, which is typically provided in the form of a confirmation from the SWA that the employer-provided housing has sufficient capacity and complies with applicable requirements.
OFLC encourages an employer who has not already obtained the SWA’s approval of its housing to contact the SWA to schedule the required pre-occupancy housing inspection as part of its initial preparations to submit the ETA 9142. At the latest, the employer must request the housing inspection when submitting its job order (ETA Form 790) to the SWA.
FAQ notes that the AGRICULTURAL ONLINE WAGE LIBRARY reflects the current prevailing wage rate for agricultural occupations.
5. New Publications and Items of Interest
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.
- 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.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 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 lauren@greencardstories.com 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.
6. Member News
Charles Kuck has published a new blog entry. “Grumpy Ex-Consular Officer Not the Best Source of Immigration Reform Advice”
Robert Loughran will speak on “Potential Changes to Immigration Law and Implications for the Business Community” on Tuesday, February 19, 2013, at the Greater Houston Partnership (GHP) Board Room, Two Allen Center Building, 7th Floor, Houston, Texas. Topics will include immigration reform proposals; being proactive in business and hiring practices in light of possible reforms and the proposed new I-9; the pros and cons of E-Verify and compliance with E-Verify rules; employer sanctions; and revisiting your company’s immigration compliance plan. The cost is $35, which includes lunch. Registration begins at 11:30 a.m. and the program is from noon to 1 p.m. This event is co-sponsored by GHP and Foster Quan, LLP. For more information, contact Victoria Rivera at vrivera@houston.org or (713) 844-3632. REGISTER ONLINE
Cyrus Mehta has co-authored several new blog entries. “When Is a Tweet an Attorney Advertisement?” “A House of Many Rooms: The Different Paths to Citizenship”
Cyrus Mehta spoke at Brooklyn Law School on February 13, 2013. The topic was immigration policy and entrepreneurship. The panel focused on how immigration laws can promote entrepreneurship, technological innovation, and economic growth.
Angelo Paparelli has published several new blog entries. “Memo to Immigration Reformers: First Catch Your [EB-5] Hare!” “The Immigration Line Is Too Damn Long (and Slow)”
Stephen Yale-Loehr was quoted in the Arizona Republic on February 3, 2013. He noted that in representing an entire state, senators tend to be accountable to a more politically diverse group of constituents than House of Representatives members and can take a more moderate view. They also have to face voters every six years rather than every two years as House members do. That makes it easier for them to look at issues from a longer-term perspective, Mr. Yale-Loehr noted. “Having to face re-election every two years can make a member of the House more cautious thinking about how this might affect his or her primary chances. Republicans have to worry about a primary-election challenge from a ‘tea party’ or other conservative candidate.”
Stephen Yale-Loehr was quoted in the Syracuse Post-Standard on February 3, 2013. He noted that the immigration reform proposals by the bipartisan Senate group and President Obama call for creating a pathway to U.S. citizenship for the 11 million undocumented people already here, but are not specific about whether the undocumented already in removal proceedings would be eligible. He said the visa system should be changed so that people who want to come to work legally in the United States can do so.
Stephen Yale-Loehr participated in a one-hour panel discussion about prospects for immigration reform in the United States on February 4, 2013, on China Radio International.
Stephen Yale-Loehr was quoted on nbcnews.com on February 6, 2013. He said one possible compromise between the two sides with respect to immigration reform proposals would be an enforcement mechanism based on objective criteria, such as a certain number of Border Patrol agents along the border or a certain amount of money spent on security. He said that if Republicans insist on a subjective measure, such as whether a poll finds that the majority of Americans think the border is secure, or whether Republican governors of border states agree the border is secure, common ground will be much more difficult to find. Asked about the political feasibility of objective measures in a final immigration bill, Mr. Yale-Loehr said, “I would hope than an objective one would satisfy the conservatives enough that they could live with it while not antagonizing the other side too much.”
7. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin