News from the Alliance of Business Immigration Lawyers Vol. 9, No. 3A • March 01, 2013
Headlines:
1. USCIS Posts EB-5 Memorandum for Public Comment – USCIS posted an updated memorandum on the EB-5 program, and is soliciting public comment.
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. ABIL Global: Germany – The EU Blue Card visa category is an interesting option available to companies assigning personnel to Germany.
4. New Publications and Items of Interest – New Publications and Items of Interest
5. Member News – Member News
6. Government Agency Links – Government Agency Links
Details:
1. USCIS Posts EB-5 Memorandum for Public Comment
On February 14, 2013, U.S. Citizenship and Immigration Services posted an updated memorandum on the EB-5 program, and is soliciting public comment. The updated memo makes various technical changes. Among other things, it clarifies that a material change after filing of an I-526 through admission as a conditional resident requires a new I-526, and that any approved I-526 will be revoked if such a change occurs. The memo also notes that if an immigrant investor is guaranteed the return of a portion of his or her investment, or is guaranteed a rate of return on a portion of his or her investment, then that portion of the capital is not at risk. If the investor is guaranteed the right to eventual ownership or use of a particular asset, then the value of the guaranteed ownership or use of such asset will be subtracted from the total amount of the investor’s capital contribution in determining how much money was truly placed at risk. The memo notes that nothing precludes an investor from receiving a return on his or her capital during or after the conditional residence period, so long as the return was not previously guaranteed to the investor and so long as the funds are not a return of the investor’s principal.
The memo also notes that in the case of a troubled business, job preservation is allowed in addition to, or in lieu of, job creation. In a troubled business, 10 jobs must be preserved, created, or some combination of the two. For example, an investment in a troubled business that creates four qualifying jobs and preserves all six pre-investment jobs would satisfy the statutory and regulatory requirements. “Troubled business” is defined in the memo, which quotes the regulations.
2. H-1B Filing Starts April 1
The Alliance of Business Immigration Lawyers (ABIL) reminds clients that H-1B filing starts 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. ABIL Global: Germany
The EU Blue Card visa category is an interesting option available to companies assigning personnel to Germany.
The German residence and work permit regulations are complex. Regulations have to be well-understood to maximize the chances for success of international transfers. Even if the German labor market is basically still affected by the so-called ban on recruitment (i.e., the categorical ban on the recruitment of foreign employees), foreign employees can regularly be employed under certain circumstances in practice.
In particular, there are certain advantages to the employment of highly qualified staff in comparison to “normal” staff. There is a considerable accumulated need in Germany for highly qualified employees against the background of intensified global competition for the most qualified labor.
The relatively high former salary threshold for executives and the highly skilled (€86.400 gross until December 31, 2008) had been reduced significantly (to €67.000 gross per year as of January 1, 2012) and was further reduced last year. Effective August 1, 2012, the salary threshold was eliminated for the highly skilled visa category. It was reduced by the implementation of the European Union (EU) Blue Card Directive and the implementation of the EU Blue Card (Blaue Karte EU) visa category in Germany. As of January 1, 2013, the salary threshold now is €46.400 gross for academic persons and is down to €36.192 gross for certain job categories (such as natural scientists, mathematicians, engineers, doctors, or IT consultants) and applicants holding a degree from a German university.
The grant of a residence permit to take up employment under the EU Blue Card visa category is possible without the need for a job market test, which alone cuts the processing time to 4-8 weeks instead of 8-12 weeks for visa categories that can only be granted once a job market test has been carried out. However, the conditions of employment must be at least comparable to those that would be offered for the position to a person from the local (German and EU) job market. It is not yet clear if a local employment contract is required for the EU Blue Card.
The EU Blue Card may be granted as a settlement permit after a certain period of time if the employee has duly contributed to the social security system. This is an advantage for the holder of the permit but not necessarily for the sponsor, because the permit is not linked to employment with a specific company. Nevertheless, the EU Blue Card visa category is a very interesting option available to companies assigning personnel to Germany.
4. New Publications and Items of Interest
iCERT system enhancement. The Labor Department’s Office of Foreign Labor Certification (OFLC) has implemented an enhancement to its Labor Condition Application (LCA) Electronic Filing Module within the iCERT System that allows employers or their authorized attorneys or agents to reuse previously filed LCAs under the H-1B, H-1B1, and E-3 visa programs. OFLC said this new feature is expected to “significantly reduce the administrative time and cost of preparing and submitting the ETA Form 9035E.” FACT SHEET
E-Verify survey. USCIS announced that users of E-Verify, the free Internet-based system that allows businesses to determine the eligibility of their employees to work in the United States, have given the program high marks in a recent customer survey. More than 1,300 randomly selected employers across the nation who use E-Verify evaluated key program aspects, including registration, the online tutorial, ease of use, technical assistance, and customer service. They rated the program as exceptionally high in overall customer satisfaction, with an average score of 86 out of 100 on the American Customer Satisfaction Index (ACSI) scale. SURVEY REPORT
Ombudsman’s conferences. USCIS’s Ombudsman Office will hold its third annual conference on October 24, 2013, from 9 a.m. to 4:30 p.m. in Washington, DC. More information will be released in September.
CIS Ombudsman Maria Odom announced plans to hold an EB-5 Stakeholders Meeting on March 5, 2013, from 1:30-4 p.m. EST in Washington, DC.
USCIS’s Ombudsman’s Office held a public teleconference on the USCIS Administrative Appeals Office on December 19, 2012, soliciting feedback on areas of concern and suggestions for improvement. INFORMATION
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 [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 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 [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.
5. Member News
Klasko, Rulon, Stock & Seltzer’s annual spring seminar, “Immigration 2013: Change Is In the Air,” will be held on Tuesday, April 23, 2013, from 9:30 a.m. to 1 p.m. at the Radisson Plaza-Warwick Philadelphia Hotel. Topics will include a legislative/immigration reform debate; prevailing wage issues; J-1 waivers; a university/hospital roundtable; a corporate roundtable; a CBP program update; a worksite enforcement update; security clearance and administrative processes; and more. For more information, call 215-825-8600.
Cyrus Mehta has published a new blog entry. “The Blocking of an Entrepreneur: A Broken Immigration System At Work”
Angelo Paparelli has published a new blog entry. “Will the New Labor-Business Accord Produce an Immigration Death Panel?”
Angelo Paparelli was interviewed on February 21, 2013, by National Public Radio. The topic was the H-1B program.
Pearl Law Group has won the Thomson Reuters Super Lawyers Pro Bono Award 2012. The firm also won “Immigration Provider of the Year,” awarded by a panel of Fortune 1000 representatives. PRESS RELEASE
6. 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