News from the Alliance of Business Immigration Lawyers Vol. 9, No. 4B • April 15, 2013
Headlines:
1. H-1B Cap Reached – H-1B cap-subject petitions reached the limit on April 5.
2. CBP To Launch New Arrival/Departure Record Process for Foreign Visitors – Under the new process, CBP will no longer require international nonimmigrant visitors to fill out a paper Form I-94 Arrival/Departure Record upon arrival to the U.S. by air or sea.
3. Temporary Protected Status Extended for Hondurans, Nicaraguans – DHS has extended TPS for eligible nationals of Honduras and Nicaragua for an additional 18 months, beginning July 6, 2013, and ending January 5, 2015. Current Honduran and Nicaraguan beneficiaries seeking to extend their TPS status must re-register by June 3, 2013.
4. USCIS Temporarily Suspends Adjudication of Most H-2B Petitions Following Court Order – USCIS has temporarily suspended adjudication of certain I-129 H-2B petitions for temporary non-agricultural workers while the government considers appropriate action in response to the court order inComite de Apoyo a los Trabajadores Agricolas et al. v. Solis.
5. State Dept. Introduces Visa Status Check Online – Users can check their U.S. visa application status at the Consular Electronic Application Center (CEAC) on the site by entering the type and case number.
6. New Publications and Items of Interest – New Publications and Items of Interest
7. Member News – Member News
8. Government Agency Links – Government Agency Links
Details:
1. H-1B Cap Reached
U.S. Citizenship and Immigration Services (USCIS) announced on April 5, 2013, that it had received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. This was the first time since 2008 that the cap was reached within the first week of the filing period. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. The agency is not accepting any more H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.
On April 7, USCIS conducted a computer-generated random selection process (“lottery”) for FY 2014 cap-subject petitions received through April 5, 2013. USCIS also conducted a lottery the same day for the advanced-degree petitions. According to USCIS, data entry for H-1B cap-subject cases filed via premium processing should be completed by April 15, 2013. The agency has begun to issue receipts for these applications. Adjudication of the premium processing cases should be completed within the required 15 days.
In the meantime, data entry for non-premium processing H-1B cases is slated to begin on April 16, 2013, and may proceed until late April or early May. USCIS has cautioned stakeholders that it may not issue receipt notices until May. Cases that are not selected for the lottery, or rejected, may not receive rejection notices until June. Petitioners may convert any non-premium processing case to a premium process case, but a request to convert the case can only be made after its receipt notice is issued.
Employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, so April 1, 2013, signaled 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 meant that heavy demand for new H-1B workers resulted in the new cap being reached in the first few days 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.
RELATED ANNOUNCEMENT ON PREMIUM PROCESSING FOR H-1B CAP-SUBJECT PETITIONS
2. CBP To Launch New Arrival/Departure Record Process for Foreign Visitors
Foreign visitors arriving in the U.S. via air or sea who need to prove their legal-visitor status (e.g., to employers, schools/universities, or government agencies) will be able to access their U.S. Customs and Border Protection (CBP) arrival/departure record information online when the agency starts records automation on April 30, 2013.
Under the new process, CBP will no longer require international nonimmigrant visitors to fill out a paper Form I-94 Arrival/Departure Record upon arrival to the U.S. by air or sea. The agency will gather travelers’ arrival/departure information automatically from their electronic travel records. CBP said it expects this automation to streamline the entry process for travelers, facilitate security, and reduce federal costs. CBP anticipates that the automated process will save the agency an estimated $15.5 million per year.
Because advance information is only transmitted for air and sea travelers, CBP will still issue a paper I-94 at land border ports of entry.
CBP will phase in the I-94 automation at air and sea ports of entry in April and May. Foreign visitors will continue to receive the paper I-94 until the automated process arrives at their port of entry. Following automation, if travelers need the information from their I-94 admission record to verify immigration status or employment authorization, the record number and other admission information will be available at CBP.gov/I94.
With the new CBP process, a CBP officer will stamp the travel document of each arriving nonimmigrant traveler. The admission stamp will show the date of admission, class of admission, and the date until which the traveler is admitted. Travelers will also receive upon arrival a flier alerting them to go to CBP.gov/I94 for their admission record information.
Travelers will not need to do anything differently upon exiting the U.S. Those previously issued a paper I-94 will surrender it to the commercial carrier or to CBP upon departure. If a traveler did not receive a paper I-94, CBP will record the departure electronically via manifest information provided by the carrier or by CBP.
Implementation will begin on April 30 at five pilot ports of entry and will continue to the remaining ports of entry over a total of four weeks.
3. Temporary Protected Status Extended for Hondurans, Nicaraguans
The Department of Homeland Security has extended temporary protected status (TPS) for eligible nationals of Honduras and Nicaragua for an additional 18 months, beginning July 6, 2013, and ending January 5, 2015.
Current Honduran and Nicaraguan beneficiaries seeking to extend their TPS status must re-register by June 3, 2013. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to register as soon as possible.
The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Honduran and Nicaraguan TPS beneficiaries who request an EAD and meet the re-registration deadline will receive a new EAD with an expiration date of January 5, 2015. USCIS recognizes that some re-registrants may not receive their new EADs until after their current EADs expire. Therefore, USCIS is automatically extending current TPS Honduras EADs that have a July 5, 2013, expiration date for an additional six months. These existing EADs are now valid through January 5, 2014.
To re-register, current TPS beneficiaries must submit Form I-821, Application for Temporary Protected Status. TPS re-registrants must also submit Form I-765, Application for Employment Authorization, but no application fee is required if the re-registrant does not want an EAD. Re-registrants do not need to pay the I-821 application fee, but they must submit the biometric services fee, or a fee waiver request, if they are 14 years of age or older. All TPS re-registrants applying for an EAD must submit the I-765 application fee, or a fee waiver request.
TPS applicants may request that USCIS waive any fees by filing a Form I-912, Request for Fee Waiver, or by submitting a personal letter asking that these fees be waived. Failure to submit the required filing fees or a properly documented fee waiver request will result in rejection of the entire TPS application, USCIS said.
Additional information on TPS for Honduras and Nicaragua, including guidance on the application process and eligibility, is available ONLINE.
Further details on this extension of TPS for Honduras, including the application requirements and procedures, appeared in a Federal Register notice published on April 3, 2013, and available HERE.
USCIS ANNOUNCEMENT FOR HONDURAS
FEDERAL REGISTER NOTICE FOR NICARAGUA
USCIS ANNOUNCEMENT FOR NICARAGUA
4. USCIS Temporarily Suspends Adjudication of Most H-2B Petitions Following Court Order
USCIS has temporarily suspended adjudication of certain Form I-129 H-2B petitions for temporary non-agricultural workers while the government considers appropriate action in response to the court order entered March 21, 2013, in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis, 2:09-cv-00240-LDD (E.D. Pa).
The court order granted a permanent injunction against the operation of a portion of the 2008 wage rule related to certain prevailing wage determinations and gave the Department of Labor (DOL) 30 days to comply with the court order. Following the order, DOL announced that it can no longer make prevailing wage determinations based on the Occupational Employment Statistics (OES) survey four-tier wage system. DOL said it will, however, continue to process prevailing wage requests not subject to the court order, including prevailing wage determinations using applicable collective bargaining agreements, acceptable private wage surveys, or Service Contract Act or Davis Bacon Act wages. DOL plans to comply with the court order within 30 days by promulgating a revised wage rule.
Accordingly, as noted above, USCIS has temporarily suspended adjudication of H-2B petitions that are accompanied by temporary labor certifications (TLCs) issued by DOL when those TLCs are based on OES four-tier prevailing wage determinations. USCIS has also suspended premium processing for all H-2B petitions until further notice. Petitioners who have already filed H-2B petitions using the premium processing service, and who receive no agency action on their cases within the 15-calendar-day period, will receive refunds. Once a revised prevailing wage rule is promulgated, USCIS will resume adjudication of all H-2B petitions.
USCIS will issue notices on all pending petitions to determine the source of the prevailing wage determination (PWD). USCIS said it will not consider these notices as an “agency action” for premium processing purposes.
If it is determined that a pending petition is accompanied by a TLC that is based on a PWD using applicable collective bargaining agreements, acceptable private wage surveys, or Service Contract Act or Davis Bacon Act wages, USCIS will resume adjudication of the H-2B petition. In addition, USCIS will adjudicate H-2B petitions that are filed with TLCs issued by DOL on or after March 22, 2013. USCIS also will continue adjudicating H-2B petitions for non-agricultural temporary workers on Guam if the petitions are accompanied by TLCs issued by the Guam Department of Labor.
Finally, USCIS may adjudicate an H-2B petition if it can be resolved on issues unrelated to the OES four-tier prevailing wage determination.
5. State Dept. Introduces Visa Status Check Online
The Department of State’s Bureau of Consular Affairs has launched “Visa Status Check” online. Users can check their U.S. visa application status at the Consular Electronic Application Center (CEAC) on the site by entering the type and case number.
Back to Top
6. New Publications and Items of Interest
Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, 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 [email protected].
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 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 [email protected] 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.
7. Member News
Several ABIL members and firms were listed in Chambers Global 2013:
FosterQuan, LLP (Robert Loughran)
Ivener & Fullmer LLP (Mark Ivener)
Klasko Rulon Stock & Seltzer (H. Ronald Klasko)
Pearl Law Group (Julie Pearl)
Seyfarth Shaw LLP (Angelo Paparelli)
Wolfsdorf Immigration Law Group (Bernard Wolfsdorf)
Other Notable Practitioners:
Francis Chin
Charles Kuck
Cyrus Mehta
Stephen Yale-Loehr
Klasko, Rulon, Stock & Seltzer, LLP will hold its Annual Spring Seminar on April 23, 2013, at the Radisson Plaza-Warwick Hotel in Philadelphia, Pennsylvania. Topics will include legislation, USCIS policies and practices, CBP programs, J-1 waivers, university/hospital roundtable, corporate roundtable, employment eligibility verification, travel issues, prevailing wage issues, and more. Mr. Klasko will be speaking. FOR MORE INFORMATION OR TO REGISTER
Charles Kuck has published a new blog entry. “USCIS and Why You Need an Immigration Attorney”
Robert Loughran organized and moderated a full-day EB-5 Immigrant Investor Summit for Attorneys and Developers in Dallas, Texas, on March 15, 2013. The event was sponsored by ILW. Mr. Loughran independently presented on “source of funds issues” in Form I-526, Immigrant Petition by Alien Entrepreneur.
Cyrus Mehta has published a new blog entry. “212(k) Waiver Victory Teaches That It’s Not Worth Manipulating the Immigration System To Settle Personal Disputes“.
Angelo Paparelli has published several new blog entries. “Rethinking Immigration: If America Will Welcome More Entrepreneurs, Why Not More Creatives?” “Will the New Labor-Business Accord Produce an Immigration Death Panel?”
Julie Pearl recently moderated a session on “Global Business Traveler Compliance” at the Bay Area Mobility Management (BAMM) annual conference, with panelists from Bechtel, Ernst & Young, and salesforce.com.
Pearl Law Group has announced the donation of its SuperLawyers Pro Bono cash award to Project Sandy Far Rockaway (helping victims of Hurricane Sandy), and to the establishment of a firm fund to assist needy pro bono clients with government application filing fees.
ABIL members participated in the Invest in America Summit in Shanghai. At the Invest in America Summit in Shanghai from March 15-18, 2013, Mr. Klasko, Mr. Wolfsdorf, and Mr. Yale-Loehr were featured as VIP speakers. ABIL also hosted a booth to offer resources to attendees of the summit. Featured in the photo are (left to right) Mr. Wolfsdorf, Mr. Yale-Loehr, and Laura Danielson.
8. 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