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ABIL Members Published Country-by-Country Comparison of Immigration Benefits for Same-Sex and Domestic Partners

July 22, 2013/in Belgium, Brazil, Canada, China, France, Germany, Hong Kong, News /by Prahlad

ABIL Members published an overview of immigration benefits for same-sex and/or domestic partners in various countries. This article provides an overview of immigration benefits available for same-sex spouses and/or domestic partners in fifteen countries. The article is limited to immigration-related issues and does not cover the situation of lesbian, gay, bisexual, or transgender individuals in each country more generally.

Belgium

Belgium legalized same-sex marriage in 2003. Belgium family reunification rules apply equally to all couples without regard to the gender of the two individuals.

Spouses of third-country business migrants in Belgium may accompany and live with their spouses, provided that both spouses are older than twenty-one years, or, if they were already married before the arrival of the business migrant, older than eighteen years. Unmarried partners of third-country business migrants with a “registered” partnership considered equivalent to a Belgian marriage will be treated the same (only “registered” partnerships performed in Denmark, Finland, Germany, Iceland, Norway, Sweden, and the United Kingdom qualify).

Belgium’s family reunification rules also provide for unmarried “non-registered” partners and common-law spouses, and apply without regard to the gender of the two individuals. Specifically, unmarried, “non-registered” partners and common-law spouses of third-country business migrants from outside the European Union/European Economic Area may accompany and live with their significant others in Belgium, provided that:

  • they are not involved in a marriage or partnership with any other person;
  • they sign a registered partnership together in Belgium;
  • they are able to demonstrate that they have a long-lasting and stable relationship with one another, established by furnishing evidence of prior legal cohabitation (at least one uninterrupted year, in Belgium or abroad); or the existence of either a bona fide relationship (the partners prove that they have known one another for at least two years, have had frequent contact (by phone, mail, or e-mail), have met at least three times over the last two years, and these meetings covered at least forty-five days in total), or that they have a common child; and
  • they are older than twenty-one years or, if they have already cohabited at least one year before the arrival of the business migrant in Belgium, older than eighteen years.

Brazil

On February 18, 2014, effective as of March 20, 2014, the National Council of Immigration published Normative Resolution No. 108, changing the rules for granting visas for dependents (the so-called “family reunion visa”), and cancelling NRs 36 and 77, which until now regulated the subject.

The main changes introduced were with respect to visas for common-law partners (irrespective of gender), which may now be applied for directly at the Brazilian consulate abroad or at the Federal Police in Brazil, without the need to go through the National Council of Immigration. This rule now applies to all types of family reunion visas and irrespective of whether they are on a temporary or permanent basis.

Another main change is that when there is no official document issued by the government/court attesting to the existence of the common-law partnership, this may now be proven through one of the following documents, rather than two as were required before: (i) evidence of dependence issued by a tax authority or by a department corresponding to the Brazilian Federal Revenue Service; (ii) a certificate of religious marriage; (iii) testamental provisions registered at a Brazilian Notary or at the competent foreign authority, proving the existence of the partnership; (iv) a life insurance policy or health plan, in which one of the parties appears as establisher of the insurance/plan and the other party as beneficiary; (v) a deed of purchase and sale of real estate, duly registered in the Property Registration Office, in which both parties appear as owners, or a rental agreement in which both parties appear as lessees; or (vi) a joint bank account.

Also, a foreign birth certificate of a common child of the partners is now accepted as proof of a common-law partnership. If there is a common Brazilian child, then the visa to be applied for is a permanent visa based on a Brazilian child rather than a visa based on the common-law partners. The acceptance of the health plan as proof of the common-law partnership is another change introduced by NR-108.

There is no citizenship requirement to get married in Brazil.

Canada

Immigration Benefits for Same-Sex Partners

Since the entry into force of Canada’s Immigration and Refugee Protection Act (IRPA) in 2002, replacing the Immigration Act, 1976, same-sex rights have become enshrined in Canadian immigration law.

Same-sex marriages are recognized for Canadian immigration purposes in any jurisdiction where they are currently legal. Canadian marriage laws have been gender-neutral since 2005. In addition, Canadian citizens and permanent residents may sponsor their spouses, common-law partners, and conjugal partners, as applicable, for the family-class permanent immigration category without regard to the gender of that spouse, common-law partner, or conjugal partner. Applicants in the economic-class immigration category can include their same-sex spouses or common-law partners as dependents in their applications regardless of gender. Also, spouses and common-law partners of a Canadian work permit or study permit holders may apply for an open work permit irrespective of whether they are in a same-sex or different-sex relationship, subject to certain conditions.

Immigration Benefits for Domestic Partners

In Canadian immigration law, domestic partners are known as “common-law partners.” A “common-law partner” is defined in subsection 1(1) of the Immigration and Refugee Protection Regulations as an individual cohabiting with a person in a conjugal relationship for at least one year. For Canadian immigration purposes, common-law relationships are considered to be marriage-like relationships characterized by mutual commitment, exclusivity, and interdependence.

Common-law relationships must be factually demonstrated to Citizenship and Immigration Canada (CIC) based on documents proving cohabitation for a continuous period of at least one year and documents proving interdependence, such as documentation regarding joint ownership of property, joint travel, or photographs of the couple. Conjugal partners are recognized as common-law partners in Canadian immigration law where, due to very exceptional circumstances such as persecution, they have been precluded from cohabiting together for a period of at least one year.

As with married spouses, common-law partners may sponsor their common-law partners and include their common-law partners as dependents on other permanent immigration applications. Similarly, common-law partners are eligible for open spousal work permits subject to certain conditions, provided that they submit sufficient evidence to substantiate their common-law relationship. Common-law partners enjoy equal rights as married spouses pursuant to Canadian immigration law but are subject to a higher evidentiary burden in terms of proving their relationship to CIC.

China

China does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. There is currently no way around these restrictions.

France

General provisions relating to marriage from the law of May 17, 2013, conflict of laws, and consular marriage. France’s Civil Code now recognizes both same-sex and different-sex marriages. Article 202-1 of the Civil Code provides that the personal law of each spouse governs the conditions for marriage, but then Article 202-2 provides that two persons of the same sex can marry when the personal law or the law of the state of residence of one spouse permits. This arrangement allows avoidance of the application of the personal law of one spouse prohibiting marriage between persons of the same sex when the marriage took place in the territory of a state recognizing marriage between persons of the same sex.

The above implies, for the Constitutional Council, that two foreigners of the same sex can marry when one of them resides or is domiciled in France. However, this rule does not apply to nationals of countries with which France is bound by bilateral agreements (Poland, Algeria, Tunisia, Morocco, republics of the former Yugoslavia, Cambodia, and Laos), which provide that the law governing conditions for marriage is the personal law. The marriage, however, may take place in a non-prohibitive state having no bilateral agreement with the country of the spouses.

Foreign nationals frequently may find themselves in situations where their countries of origin do not recognize their marriages in France unless those countries have adopted legislation similar to the new French legislation.

A consular marriage between same-sex French nationals does not raise issues. However, a consular marriage between a French national and a foreign national may be more complex in consular posts in prohibiting countries (which are in the majority). In such case, the Civil Code provides that the marriage may take place in France.

The law of May 17, 2013, also provides that marriages between same-sex couples may be recognized retroactively if they were validly celebrated abroad at a time when French law forbade such marriages.

The impact on French immigration rights of foreign nationals moving to France. Marriage now carries the same effects, rights and obligations whether between persons of different sex or the same sex.

  • Derivative residency and work rights known as “accompanying family rights” are applicable to married foreign workers under Inter-Company Transfer, EU Blue Card, or Skills and Talents status, regardless of the gender identity of the spouses when the marriage is celebrated in France or recognized by France (marriage between two foreigners) on the basis of the new provisions of the Civil Code and Article L313-11-3 CESEDA.
  • The same sex marriage between foreign national and a French national will allow the issuance of a visa and residence permit to the foreign national as the spouse of French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.
  • The marriage between of a third country foreign national in European Union with a European citizen is expected to allow the issuance of a residence permit as a European spouse under Articles L121-3 to L121 -5 CESEDA.

Recognition of marriage for same-sex couples could also give rise to new legal actions when a decision refusing stay maybe considered as disproportionate interference with rights to private and family life, under Article 8 of the European Convention on Human Rights.

Domestic partners however will not enjoy the same immigration rights as same-sex married couples. Even domestic partners who contract the French form of domestic partnership agreement (PACS) will not qualify for “accompanying family rights”.

Hong Kong S.A.R.

In a landmark decision on July 4, 2018, the Court of Final Appeal, Hong Kong’s highest court, ruled that the Hong Kong Immigration Department must issue a dependent visa to a same sex partner for immigration purposes. Accordingly, while the definition of a “marriage” as between a man and a woman under Hong Kong Law remains unchanged, the marriage status and a civil union partnership of same-sex couples entered into in a jurisdiction which recognizes such relationships are now recognized in Hong Kong for the purpose of applying for a dependent visa if the other partner holds permanent resident status or an employment visa.

The ruling was welcomed by a host of global financial institutions, law firms, executive search firms and other businesses as this ruling strengthens Hong Kong’s ability to attract global talent and its competitiveness as recruiting and relocating talent to Hong Kong had sometimes been hampered because of the immigration restrictions of same sex couples.

India

Indian law does not recognize same-sex marriages and considers gay sex a criminal offense. No provisions in Indian law provide for immigration benefits to same-sex spouses or partners. Section 377 of the Indian Penal Code (IPC), an archaic law, was introduced in 1861 during British rule in India. It criminalized “carnal intercourse against the order of nature with any man, woman or animal” with a maximum sentence of life imprisonment.

The struggle to strike down section 377 of the IPC as unconstitutional has been a long one, spearheaded by activists from non-governmental organizations (NGOs) fighting for the rights of the lesbian, gay, bisexual, and transgender (LGBT) community. On July 2, 2009, a historic judgment decriminalizing homosexuality was passed by the Delhi High Court in favor of Naz Foundation, an NGO working in the fields of HIV/AIDS intervention and prevention and for the rights of the LGBT community. An appeal was filed challenging this decision in the Supreme Court of India. On December 11, 2013, the Supreme Court reversed the decision of the Delhi High Court, thereby criminalizing homosexual intercourse between consenting adults. The Supreme Court shifted the onus onto Parliament to decide whether to repeal the provision, arguing that the courts could not make such decisions under the existing laws. The Supreme Court further observed that there was “no constitutional infirmity” in the section 377 law. This judgment has sparked widespread condemnation throughout India and internationally, and has been criticized as regressive.

However, there have been isolated incidents and trends worth reporting. In November 2013, a senior Indian Foreign Service officer was demoted from her post in the Ministry of External Affairs (MEA) passport and visa division for refusing a visa for the same-sex spouse of a U.S. diplomat. She refused the visa on the ground that same-sex marriages are not legal in India and the diplomat’s spouse could not therefore be granted a diplomatic visa and recognized as a “spouse” in India. A senior official in the MEA’s American division suggested that although there is no rule in India allowing visas for gay couples, the diplomat’s partner could be given a visa as a family member as it had been done in the past. On the other hand, in light of India’s opposition to the arrest of its Deputy Consul General in New York, one politician from the Bhartiya Janata Party has suggested that the same-sex spouses or partners of U.S. diplomats be prosecuted under section 377 as a retaliatory measure.

Until recently, Indian law did not recognize relationships between domestic, live-in (opposite-sex) partners. On June 17, 2013, the Madras High Court held that for a valid marriage, all customary rights need not be followed and subsequently solemnized. As long as the couple is not disqualified by law from marrying each other, and a third party’s rights are not affected, the couple can be declared to be spouses by the court. This declaration would be on the basis of whether they have had a sexual relationship. The court held that if a woman age 18 and above, and a man age 21 and above, have a sexual relationship, they will be treated as husband and wife, especially if the woman becomes pregnant. Even if the woman does not become pregnant, if there is “strong documentary evidence to show existence of such relationship,” they will still be termed “husband” and “wife.” However, this ruling only applies to the state of Tamil Nadu and cannot be enforced elsewhere in India.

In a recent judgment of November 26, 2013, the Supreme Court of India dealt with the issue of live-in relationships, but that was within the purview of the Domestic Violence Act 2005 (DV Act, 2005). The Supreme Court held that a “live-in relationship” would not amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship” under Section 2(f) of the DV Act, 2005 if the woman in such a relationship knew that her male partner was already married. All live-in relationships are not relationships in the nature of marriage, but they can still come within the ambit of the DV Act, 2005. The judgment was delivered by a Division Bench of Justices KS Radhakrishnan and Pinaki Chandra Ghose in an appeal filed by Indra Sarma (Appellant) against the decision of the Karnataka High Court. This ruling only applies to domestic partners of the opposite sex, not to same-sex partners, in view of the recent decision of the Supreme Court in the Suresh Kumar Koushal case.

As these issues are very recent and path-breaking in Indian law, there has been no recognition thus far of same-sex partnerships or domestic relationships with respect to Indian immigration. The Indian government filed a review petition in the Supreme Court on December 20, 2013, challenging the earlier judgment upholding section 377, stating, “Section 377 IPC, insofar as it criminalizes consensual sexual acts in private, falls [afoul] of the principles of equality and liberty enshrined in our Constitution.” Following the government’s review petition, Naz Foundation also filed a review petition in the Supreme Court challenging its decision. On January 28, 2014, however, the Supreme Court dismissed the petitions seeking review.

Italy

A same-sex spouse of a European Union (EU) national may apply for a five-year permit to stay in Italy, provided the marriage was entered into in a country where same-sex marriages are validly performed. Italian immigration offices are now increasingly approving these applications. Same-sex marriage is not legal in Italy.

Domestic partnerships are not recognized by Italian law and the immigration system does not provide any option for them.

Japan

Japan does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. The same-sex spouse or partner can try to apply for a dependent visa and the case will be referred to the Ministry of Foreign Affairs in Japan, which can grant the visa, but the chances of a visa being approved on that basis are extremely low.

Mexico

On December 21, 2009, the legislative assembly in Mexico City, D.F., legalized same-sex marriage and accorded adoption rights to same-sex parents. It was the first city in Mexico and in Latin America to legalize same-sex marriages. These reforms in the capital’s civil law have spread to other entities in Mexico.

The Migration Act of November 2012 established regulations for domestic partners to obtain Mexican visas on the basis of their bonds with Mexicans or foreign residents in Mexico.

The requirements for domestic partner visas in Mexico are similar to those for different-sex married couples, but with more stringent requirements. While same-sex married couples are treated as domestic partners for Mexican immigration purposes, same-sex unmarried couples will only qualify if they have proof of their partnership in the country of origin.

Netherlands

In the Netherlands, there is no legal difference between a same-sex marriage and a different-sex marriage.

Unmarried partners, regardless of gender, fulfill the criteria for family reunification if they both prove, by official (and legalized) documents, that they are unmarried. In addition, they must prove that they have a long-lasting and stable relationship. This means that the relationship has to be comparable to a marriage. To prove the existence of such a relationship, the partners must complete and sign two forms, the so-called relationship statement and a questionnaire that asks questions like how they met, how long they have been in the relationship, and whether their family members have been informed about their relationship. The legislation does not define a minimum period of time the relationship must have existed.

For marriages and “registered” partnerships (similar to “registered” partnerships in Belgium, discussed above), the criteria for family reunification are very similar. Married couples or registered partners have to prove their marriage or registered partnership with official (and legalized) documents.

The minimum age to apply is twenty-one years, and the person who applies for reunification with his or her partner or spouse must earn at least the minimum wage.

Peru

Peru does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. Only marriages according to Peruvian civil law and related regulations are recognized for purposes of obtaining resident visas through family-based proceedings.

Russia

Russia does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes.

South Africa

South African immigration law gives effect to the requirement of its Constitution that a person may not be discriminated against on the basis of his or her sexual orientation. That protection applies whether the person is a foreign national or a South African citizen.

The term “spouse,” for purposes of South African immigration law, describes a person who is in a spousal relationship, be he or she in a marriage, a civil union, or an informal life partnership. Legislation does require, however, that any previous marriage or civil union must have been lawfully terminated. The relationship must be monogamous.

The foreign spouse of a South African citizen is eligible to apply to the Department of Home Affairs for a temporary residence permit to accompany his or her South African spouse in South Africa. These “relative’s permits” are usually issued for about two years at a time. A relative’s permit may be extended (from within the country), upon application, so long as the relationship still exists. Once the spousal relationship is five years old, the foreign spouse may apply for permanent residence on the basis of the relationship.

If the foreign spouse has obtained an offer of employment, he or she may apply to have the permit amended to allow him or her to take up that employment.

When a foreign national is moving to South Africa for some lawful purpose, he or she may bring a spouse or partner regardless of that spouse or partner’s gender. The “accompanying spouse” must (principally) prove that the spousal relationship exists. Unfortunately, the “dispensation” allowing a foreign spouse to take up employment in South Africa applies only to the spouses of South African citizens.

United States

On June 26, 2013, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA). DOMA defined “marriage” for federal law purposes as between “one man and one woman” and “spouse” as either a husband or wife “of the opposite sex.” As a result of the Supreme Court’s decision, same-sex spouses of U.S. citizens and permanent residents are now treated the same as different-sex spouses at the federal level, and may apply for green cards based on their marriages. Absent fraud or a particular public policy consideration, and as long as the marriage was valid where and when performed, the marriage is valid for U.S. immigration purposes. Moreover, U.S. immigration officials have been directed to recognize a validly performed same-sex marriage regardless of any anti-marriage equality law or constitutional amendment in a couple’s state of residence (or intended residence) in the United States.

As of press time, same-sex marriages are legally performed in eighteen states and the District of Columbia. The states include California, Connecticut, Delaware, Hawaii, Illinois (starting June 2014), Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Utah (from December 20, 2013, to January 6, 2014, only) Vermont, and Washington.

Outside of the United States, same-sex marriages are validly performed in sixteen countries: the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, Brazil, France, Uruguay, New Zealand, the United Kingdom (effective later this year in England, Wales, and Scotland only), and in Mexico City, D.F.

Overall, U.S. immigration authorities are treating all married couples equally in both the immigrant and nonimmigrant contexts, albeit not without a few growing pains along the way. For example, while U.S. Customs and Border Protection (CBP) honors visas issued by the U.S. Department of State (DOS) to same-sex spouses of principal nonimmigrant workers (e.g., an H-4 visa as the spouse of an H-1B nonimmigrant worker), CBP officers are refusing to issue derivate nonimmigrant status to Canadian citizens applying for admission to the United States (Canadians generally do not require visas) as the same-sex spouse of a principal nonimmigrant, and have confirmed that they will not do so without “additional guidance.”

Importantly, however, civil unions, domestic partnerships, and other forms of relationship recognition short of marriage are not accorded the same familial status as marriage under U.S. immigration law. DOS will issue a B-1/2 visa to a “cohabitating partner” of a principal nonimmigrant visa holder, but these will only allow the “cohabitating partner” to obtain a six- to twelve-month stay upon entry, whereas the principal nonimmigrant may be on temporary assignment to the United States for several years at a time.

Details with respect to immigrant and nonimmigrant visas are summarized below.

Immigrant visas:

Same-sex spouses are recognized for immigration purposes, provided the marriage was recognized by the state where it was performed. If the party resides in a state that does not recognize the marriage, but it was valid where performed, it will be recognized for immigration purposes. This is a dramatic turnaround from the position taken before June 2013 and results from administrative application of the Supreme Court’s decision in Windsor v. United States, 570 U.S. 12 (2013). Practitioners report that qualifying same-sex cases are being adjudicated for immigration benefits professionally.

Same-sex partners or those in a domestic relationship enjoy no immigrant visa benefits. However, they may be able to visit under a B-2 visa for an extended period. If one partner is a U.S. citizen or permanent resident, this would raise the issue of whether the non-U.S. partner is a bona fide nonimmigrant. This might be overcome where the U.S. partner can show that he or she is only in the U.S. temporarily or travels frequently.

Nonimmigrant visas:

Nonimmigrant options for partners who are not legally married:

Same-sex or different-sex partners who are not legally married, whether or not they are in a legally recognized domestic partnership, may qualify for a B-2 visitor’s visa to accompany a nonimmigrant partner, provided they can demonstrate the normally required intent not to immigrate or overstay in the United States. The primary purpose of coming to the United States must be to accompany the significant other who has already demonstrated nonimmigrant intent in obtaining his or her own visa, whether it be as a visitor, student, temporary worker, or other nonimmigrant classification. In making the assessment, U.S. immigration authorities will consider the current circumstances and prospects in the home country upon return, as well as the strength of his or her relationship with the “principal” alien and the principal’s own ties abroad.

The principal applicant may be exempt from having to document nonimmigrant intent under an H or L visa or from having to document a residence abroad under an A, E, G, I, O, or R visa classification. The accompanying B-2 visitor partner, however, must show nonimmigrant intent and a residence abroad, whether it is his or her own address or that of a relative or friend.

Nonimmigrant options for same-sex spouses:

Same-sex spouses or partners may enjoy the full benefits of a K-1 fiancé(e) visa or as a derivative of other visa classifications such as B-2 visitor or H-4 spouse of temporary worker. They face the issue of immigrant intent much the same as a domestic partner. As with immigrant marriages, the marriage must have been recognized in the jurisdiction where performed. Whether it is recognized in the jurisdiction where the party resides is not determinative.

United Kingdom

In the United Kingdom (UK), a law legalizing same-sex marriage in England, Wales, and Scotland was passed in 2013. Northern Ireland does not permit same-sex marriage. In 2004, same-sex civil partnerships were legalized in all of the UK with the passage of the Civil Partnership Act.

For the purposes of entering or remaining in the UK, unmarried and same-sex partners of persons present and settled in the UK who are subject to immigration control (i.e., nationals not from the European Economic Area or Switzerland) enjoy the same benefits as married heterosexual partners. Although the general requirements and process of applying are the same as with heterosexual partners, there are minor differences concerning the documentary evidence that must be produced to demonstrate the legitimacy of the relationship.

To qualify, applicants must:

  • be age 18 or older;
  • have lived together with their partner in a relationship akin to marriage for at least the previous two years;
  • meet or exceed level A1 of the common European Framework of Reference for English language or be exempt;
  • not be in any other marriage or partnership;
  • not be related by blood to the partner;
  • have sufficient accommodation and maintenance without recourse to public funds;
  • intend to live together permanently; and
  • not fail for refusal under the general grounds for refusal to the UK.

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https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 Prahlad https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png Prahlad2013-07-22 14:19:372020-01-22 14:22:15ABIL Members Published Country-by-Country Comparison of Immigration Benefits for Same-Sex and Domestic Partners

News from the Alliance of Business Immigration Lawyers Vol. 9, No. 7B • July 15, 2013

July 15, 2013/in Immigration Insider /by ABIL

Headlines:

1. DHS Issues FAQ on Supreme Court’s DOMA Ruling – Secretary of Homeland Security Janet Napolitano said she has “directed [USCIS] to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

2. DOL Labor Certification Registry Goes Live – The registry is intended to provide the public with access to “appropriately redacted” copies of H-1B, H-1B1, E-3, H-2A, H-2B, and permanent labor certification documents issued by OFLC, as well as quarterly and annual case disclosure data.

3. ABIL Global: France – Under a new law, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses. Also, the deployment of biometrics has led to modifications in procedures for applying for a residence permit.

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. DHS Issues FAQ on Supreme Court’s DOMA Ruling

The Department of Homeland Security issued a FAQ on July 1, 2013, in response to the Supreme Court’s decision on June 26, 2013, United States v. Windsor, which struck down the 1996 Defense of Marriage Act (DOMA) as unconstitutional. That law had prohibited the federal government from recognizing same-sex marriages, regardless of whether they were legally valid in certain states or in other countries, and from conferring federal benefits on same-sex spouses that are enjoyed by heterosexual spouses.

The FAQ notes that Secretary of Homeland Security Janet Napolitano said she has “directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” The FAQ provides the following questions and answers:

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?

A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?

A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

About 30,000 same-sex binational couples include spouses who may now be eligible for immigration benefits. The Supreme Court’s ruling applies only to same-sex couples in the 13 states that recognize gay marriage, not to the other states that don’t. Legal observers disagree whether a gay couple who gets married in one state and moves to another state that doesn’t recognize the marriage will still be entitled to federal benefits.

USCIS’S NEW FAQ

SUPREME COURT’S DOMA DECISION

DETAILS AND ADDITIONAL COVERAGE

FAQ ABOUT THE RULING’S IMPACT ON IMMIGRATION CASES

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2. DOL Labor Certification Registry Goes Live

The Department of Labor (DOL) recently announced implementation of the Labor Certification Registry (LCR) on the Office of Foreign Labor Certification’s (OFLC) iCERT Visa Portal System website. The LCR is intended to provide the public with access to “appropriately redacted” copies of H-1B, H-1B1, E-3, H-2A, H-2B, and permanent labor certification documents issued by OFLC, as well as quarterly and annual case disclosure data.

The LCR displays all certified H-1B1 and E-3 Labor Condition Applications (LCA) and permanent labor certifications, dating back to April 15, 2009. However, the DOL said it is experiencing technical difficulties with the display of approved H-1B LCAs. In addition, due to the historical paper-based filings of H-2A and H-2B applications, the DOL said that it must manually redact and upload these labor certification documents to the LCR. Therefore, only a limited number of records covering fiscal year 2013 are currently available. The agency said it anticipates that H-1B LCAs will be available soon, and that staff will continue to upload historical H-2A and H-2B documents in the coming months.

REGISTRY

RELATED FEDERAL REGISTER NOTICE

ANNOUNCEMENT

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3. ABIL Global: France

Under a new law, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses. Also, the deployment of biometrics has led to modifications in procedures for applying for a residence permit.

Same-Sex Marriage Rights Conferred Under French Immigration Procedures

The Act of May 17, 2013, modifies section 143 of the Civil Code to read: “Marriage is contracted by two persons of opposite sex or the same sex.” France thus joins the countries that have legalized marriage between persons of the same sex. Those countries include Belgium, Spain, Canada, some states in the United States and Brazil, the Netherlands, Sweden, New Zealand, South Africa, Mexico (Federal District), Argentina, Norway, Denmark, Portugal, Iceland, and Uruguay. The new law means that in France, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses.

General Provisions; Conflict of Laws In Other Countries; Consular Marriage

Article 202-1 of the Civil Code provides that the conditions for marriage are governed by family law, but article 202-2 provides that two persons of the same sex can marry when the family law or the law of the state of residence of one spouse permits. This arrangement allows avoidance of the application of the family law of one spouse prohibiting marriage between persons of the same sex when the marriage took place on the territory of a state recognizing marriage between persons of the same sex.

The above implies that two foreigners of the same sex can marry when one of them resides or is domiciled in France. However, this rule does not apply to nationals of countries with which France is bound by bilateral agreements (Poland, Algeria, Tunisia, Morocco, republics of the former Yugoslavia, Cambodia and Laos), which provide that the law governing conditions for marriage is the personal law. The marriage, however, may take place in a non-prohibitive state having no bilateral agreement with the country of the spouses.

Foreign nationals may find themselves in situations where their marriages in France are not recognized by their countries of origin.

A consular marriage (registered at the French consulate) between same-sex French nationals would not raise an issue. However, a consular marriage between a French national and a foreign national may be more complex in consular posts in countries that prohibit same-sex marriage. In such case, the Civil Code provides that marriage may take place in France.

The law of May 17, 2013, also provides that marriages between same-sex couples, validly celebrated abroad at a time when the French law forbade it, may be recognized retroactively.

Impact on French Immigration Rights of Foreign Nationals Moving to France

Derivative residence and worker rights known as “accompanying family rights” will be applicable to married foreign workers under Intra-Company Transfer, EU Blue Card, and Skills and Talents status, regardless of the sexual identity of the spouses when the marriage is celebrated in France or recognized by France (marriage between two foreigners) on the basis of the new provisions of the Civil Code and Article L313-11-3 CESEDA (code de l’entrée et du séjour des étrangers et du droit d’asile).

A same-sex marriage between a foreign national and a French national will allow the issuance of a visa and a residence permit to the foreign national as the spouse of a French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.

The marriage between a third-country national in the European Union with a European citizen is expected to allow the issuance of a residence permit as a European spouse under Articles L121-3 to L121-5 CESEDA.

Recognition of marriage for same-sex couples could also give rise to new legal actions when a decision refusing stay may be considered as disproportionate interference with the rights to private and family life, under Article 8 of the European Convention on Human Rights.

Biometrics Deployed

The deployment of biometrics in all French departments (département, or administrative area) has led to modifications in procedures for applying for a residence permit and requires an additional appearance at the Prefecture for fingerprinting. This change also will affect the beneficiaries of one-stop Office Français de l’Immigration et de l’Intégration (OFII) processing (e.g., Intra-Company Transferees, EU Blue Cards, Skills and Talents) by the end of the year.

Gradual Deployment of Biometrics and Modifications in Residence Permit Application Process

A regulation of the Council of the European Union (EC), No. 380/2008 of April 18, 2008, mandates a new format for biometric residence permits comprising an electronic component into which are inserted a photograph and two fingerprint images. Under this regulation, the Ministry of Interior issued two circulars in April 2011 and June 2012, describing the details on implementing the new residence permit requirement and the progressive deployment of biometrics, which is now effective in several departments.

After a first stage completed in 2011 with the release of the new uniform format for residence permits, the second step will be to collect and insert fingerprints of foreign nationals collected by the Prefecture into the integrated residence electronic component of the permit.

The fingerprinting will require modifications of the procedures for applying for a residence permit. Any person requesting a residence permit (first application or renewal) will be required to go in person to the Prefecture for fingerprinting, as noted above. A deposit at City Hall will no longer be possible and procedures by mail will be affected.

Fingerprints will be valid for five years.

Impact on Categories of Foreigners Benefiting From the One-Stop OFII Process

To date, the three categories of foreigners benefiting from the one-stop OFII process (Intra-Company Transferees, EU Blue Cards, Skills and Talents), as well as family members of holders of these permits, have been exempted temporarily from biometric compliance in the departments using the one-stop OFII process. This exemption is valid until completion of the deployment of biometrics. France had aimed at full deployment by the end of the first half of 2013, but only a few departments have implemented biometrics to date: Loire-Atlantique, Alpes-Maritimes, Hauts-de-Seine, SaÔne-et-Loire, Essonne, Seine-et-Marne, and Puy-de-DÔme. However, the deployment will affect all French departments by the end of the year.

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4. 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.Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

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.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. 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. See also 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.

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5. Member News

Charles Kuck has authored a new blog entry. “Immigration Reform – What Words Mean Makes All the Difference”

Cyrus Mehta has authored a new blog entry. ” How Extraordinary Does One Need To Be To Qualify As A Person of Extraordinary Ability?” He also co-authored a blog entry. “How Cyrus’ View of Religious Toleration May Have Inspired the U.S. Constitution”

Angelo Paparelli has authored a new blog entry. “USCIS, America’s Immigration Cutcherry, Adopts New Procedures as the Boss Readies for a Move Upstairs”

Stephen Yale-Loehr wrote an op-ed about the Senate immigration bill that was published in El Norte, a Mexican newspaper, on July 4, 2013. He summarized what the Senate bill would do. He said, among other things, that the bill would both benefit and hurt Mexicans: “The Senate bill contains a legalization program, but it requires a long wait and many requirements, so many people may not end up being able to legalize their status. Also, the border security provisions in the Senate bill are too tough. They unnecessarily militarize the border and would harm U.S.-Mexican relations.” SPANISH VERSION

Mr. Yale-Loehr was featured in several recent LexisNexis PODCASTS and ARTICLES.

Mr. Yale-Loehr was quoted:

  • In the Wall Street Journal on July 2, 2013, in “Snowden’s Asylum Effort Hits Roadblocks.” He said Mr. Snowden could ask Russia to issue him a refugee travel document under the United Nations convention on refugees.
  • In Time.com on July 2, 2013, in “Snowden’s Worst-Case Scenario: What If No Countries Take Him?” He said he thought Mr. Snowden could be in Moscow for a long time, but that he could be helped by Article 28 of the United Nations convention on refugees, which asks member states to give “sympathetic consideration” to those who can’t obtain the necessary documents from their home countries.
  • In the Gannett newspaper chain, in articles about the Senate immigration bill. Commenting on the estimated 11 million people who entered the United States without authorization or overstayed their legal visits before December 31, 2011, who would be offered a 13-year path to citizenship beginning with their application for registered provisional immigrant status, Mr. Yale-Loehr noted that requirements under the Senate bill would exclude some.
  • In TribLIVE/USWorld on June 27, 2013. In “Immigration Bill Unlikely To Pass House,” he noted, “The Senate’s passage of a major immigration reform bill is a milestone, but it is only half the battle. A tougher battle lies ahead in the House.”

Mr. Yale-Loehr also was quoted in an article about the prospects for immigration reform in the House of Representatives. A version of the story was published on July 9, 2013, in the Arizona Republic.

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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

Visa application wait times for any post

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https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2013-07-15 00:00:462019-09-05 10:59:33News from the Alliance of Business Immigration Lawyers Vol. 9, No. 7B • July 15, 2013

EB-5 & Other Investor News from the Alliance of Business Immigration Lawyers Vol. 3, No. 2 • July 01, 2013

July 01, 2013/in EB-5 Investor News /by ABIL

Headlines:

1. Signaling Flexibility Within Limits, USCIS Releases Final Version of EB-5 Policy Memo – USCIS has released the final version of a long-awaited memorandum on EB-5 adjudications policy that went through four iterations beginning in November 2011.

2. USCIS Holds EB-5 Stakeholder Engagement With SEC on Securities Law Compliance – The SEC provided an overview of registration requirements under federal securities laws, among other topics.3. USCIS ‘Conversation’ on Electronic Immigration System Unveils New Document Library – The new document library will allow I-526 petitioners to share documents related to a new commercial enterprise that were previously submitted with an approved Form I-924, Application for Regional Center, rather than having to submit these same documents with each I-526 petition.4. USCIS Holds EB-5 ‘Town Hall’ on Immigration and Entrepreneurship – USCIS held a “town hall” meeting to discuss the issues at the nexus of immigration law, entrepreneurship, and innovation, including “policies and practices to make the U.S. a welcoming place for innovation-driven entrepreneurs.5. New Publications and Items of Interest – New Publications and Items of Interest6. Member News – Member News7. EB-5 Government Agency Links – EB-5 Government Agency Links


Details:

1. Signaling Flexibility Within Limits, USCIS Releases Final Version of EB-5 Policy Memo

On May 30, 2013, U.S. Citizenship and Immigration Services (USCIS) released the final version of a long-awaited memorandum on EB-5 adjudications policy that went through four iterations beginning in November 2011.

The memo begins by reviewing the purpose and structure of the EB-5 immigrant investor program and reviews terminology and definitions, noting that the program’s purpose is “to promote the immigration of people who can help create jobs for U.S. workers through their investment of capital in the U.S. economy.”

Regarding the “preponderance of the evidence” standard, the memo notes that adjudication of EB-5 petitions and applications must establish each element by showing that what is claimed is “more likely so than not so.” This is a lower standard of proof than the “clear and convincing” or “beyond a reasonable doubt” standards. “The petitioner or applicant does not need to remove all doubt from our adjudication,” the memo states. Even if an adjudicator has some doubt, if the petitioner or applicant submits “relevant, probative, and credible evidence” that leads to the conclusion that the claim is more likely than not, or probably true, the petitioner or applicant has satisfied the standard of proof.

The memo allows a degree of flexibility in certain areas, such as “to account for the realities and unpredictability of starting a business venture.” The memo notes, for example, that the EB-5 program allows an immigrant investor to become a lawful permanent resident, without conditions, if he or she has established a new commercial enterprise, substantially met the capital requirement, and can be expected to create within a reasonable time the required number of jobs. All of the goals of capital investment and job creation need not have been fully realized before the conditions on the immigrant investor’s status have been removed. Rather, the memo states, the regulations require the submission of documentary evidence that establishes that it is more likely than not that the investor is in “substantial” compliance with the capital requirements and that the jobs will be created “within a reasonable time.”

USCIS has some latitude in interpreting what constitutes “within a reasonable time,” the memo notes, adding that the regulations require that the business plan submitted with the Form I-526, Immigrant Petition by Alien Entrepreneur, establish a likelihood of job creation “within the next two years.” Because the law contemplates two years as the baseline expected period in which job creation will take place, the memo explains, jobs that will be created within a year of the two-year anniversary of the immigrant’s admission as a conditional permanent resident or adjustment to conditional permanent resident status may generally be considered to be created within a reasonable period of time. Jobs projected to be created beyond that time horizon “usually will not be considered to be created within a reasonable time, unless extreme circumstances, such as force majeure, are presented,” the memo warns.

Following the theme of flexibility with limits, the memo acknowledges that business strategies “constantly evolve.” Therefore, Form I-924, Application for Regional Center, provides a list of acceptable amendments, including “changes to organizational structure or administration, capital investment projects (including changes in the economic analysis and underlying business plan used to estimate job creation for previously approved investment opportunities), and an affiliated commercial enterprise’s organizational structure, capital investment instruments or offering memoranda.” The memo notes, however, that such formal amendments to the regional center designation are not required when a regional center changes its industries of focus, geographic boundaries, business plans, or economic methodologies, unless the regional center elects to pursue an amendment because it seeks certainty in advance of adjudication.

The memo also notes that unless there is reason to believe that a prior adjudication involved an objective mistake of fact or law, USCIS should not reexamine determinations made earlier in the EB-5 process. Absent a material change in facts, fraud, or willful misrepresentation, the memo states, USCIS should not re-adjudicate prior USCIS determinations that are subjective, such as whether the business plan is comprehensive and credible or whether an economic methodology estimating job creation is reasonable.

Other topics the memo discusses include targeted employment areas; new commercial enterprises; purchases of existing businesses that are restructured or reorganized; expansion of existing businesses; pooled investments in non-regional center cases; evidence of the establishment of, or investment in, a new commercial enterprise; job creation; qualifying employees; the sequence of individual investor filings; business plans; and the impact of “material changes” to a project.

27-PAGE MEMO


2. USCIS Holds EB-5 Stakeholder Engagement With SEC on Securities Law Compliance

U.S. Citizenship and Immigration Services held an EB-5-related stakeholder engagement with the Securities and Exchange Commission (SEC) on April 3, 2013, to discuss the EB-5 program. Subject matter experts discussed securities law compliance in the context of EB-5 regional centers and investments.

During the call, the SEC provided an overview of registration requirements under federal securities laws. The SEC noted that these include, for example, an obligation under certain circumstances to register the securities for offer or sale under the Securities Act of 1933 (Securities Act); the broker registration of persons effecting transactions in securities under the Securities Exchange Act of 1934 (Securities Exchange Act); the registration of persons or entities offering investment advice under the Investment Advisers Act of 1940 (Investment Advisers Act); and the registration of persons or entities that offer investment products to the public under the Investment Company Act of 1940 (Investment Company Act).

Throughout the engagement, the SEC indicated that it largely focuses on the anti-fraud provisions within the law. The SEC stated that the definition of a “security” is broad and that EB-5 investments likely include the offering of securities that would require either registration or exemption from the registration requirements under the Securities Act. The SEC stressed that, while registration exemptions may be available to the EB-5 community, all anti-fraud provisions still apply to exempt offerings.

The SEC provided guidance on the definition of a broker-dealer, as well as the types of activities that trigger the broker-dealer registration requirements (including soliciting or advertising investments and receipt of transaction-based compensation). The SEC highlighted the serious consequences of failure to register as a broker-dealer, including civil and criminal liability, bars on future involvement in the securities industry, and possible rescission of the securities sold through the unregistered broker.

EB-5 regional centers and associated entities, as well as their respective principals, may be subject to the requirements of the Investment Advisers Act and Investment Company Act, the SEC noted. The agency said that some individuals or entities may not have to register as either an Investment Adviser or as an Investment Company under these acts if they qualify for certain limited exemptions.

The SEC’s Division of Enforcement emphasized that an EB-5 project may likely include securities offerings that are subject to the various securities laws. As an example of its enforcement action, the SEC referenced a complaint it filed in U.S. District Court in the Northern District of Illinois in February 2013 alleging that an individual and companies participating in the EB-5 program engaged in fraud. USCIS worked closely with the SEC in its investigation of that case.

USCIS’ SUMMARY OF THE SEC TELECONFERENCE


3. USCIS ‘Conversation’ on Electronic Immigration System Unveils New Document Library

On May 23, 2013, USCIS held a “conversation” on USCIS ELIS (Electronic Immigration System) and the EB-5 program. USCIS noted that Form I-526, Immigrant Petition by Alien Entrepreneur, will be the first of the EB-5 forms available for e-filing in ELIS. USCIS said that at a March 28 stakeholder teleconference, the agency heard concerns about multiple investors submitting the same documentation with the I-526. To address this concern, USCIS said it plans to add a “document library” to ELIS later in the year. The document library will allow I-526 petitioners to share documents related to a new commercial enterprise that were previously submitted with an approved Form I-924, Application for Regional Center, rather than submitting these same documents with the I-526.

During this call, USCIS officials gave an overview of the document library concept and solicited feedback on managing access to the document library, uploading and storing documents, and regional center and investor expectations.

ELIS CALL ANNOUNCEMENT

MORE INFORMATION ON ELIS

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4. USCIS Holds EB-5 ‘Town Hall’ on Immigration and Entrepreneurship

On May 8, 2013, USCIS held a “town hall” meeting to discuss the issues at the nexus of immigration law, entrepreneurship, and innovation, including “policies and practices to make the U.S. a welcoming place for innovation-driven entrepreneurs.” The program featured a panel from the local entrepreneurial community and Q&A time. Panelists included:

  • Alejandro Mayorkas, director, USCIS;
  • Ashish Rangnekar, founder and CEO, Benchprep;
  • Uzi Shmilovici, founder and CEO, Base;
  • Ian Wagreich, partner, Latimer, LeVay, Fyock LLC;
  • Ellen Rudnick, clinical professor, Chicago Booth; executive director, Polsky Center for Entrepreneurship and Innovation; and
  • Ted Gonder, founder and executive director, Moneythink; entrepreneur in residence, USCIS.

TOWN HALL ANNOUNCEMENT
MORE INFORAMTION ON USCIS’ “ENTREPRENEUR PATHWAYS” INITIATIVE

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5. New Publications and Items of Interest

USCIS Ombudsman report. U.S. Citizenship and Immigration Service Ombudsman Maria M. Odom submitted the 2013 Annual Report to Congress. Among other things, the 2013 report notes that EB-5 stakeholders continued to raise concerns during the reporting period, and that approximately 10 percent of cases received by the Ombudsman pertained to EB-5 cases. The Ombudsman noted that USCIS had issued EB-5 program policy memoranda and that the most recent guidance addressed many longstanding stakeholder concerns.

REPORT

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.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

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.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. 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. See also 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.

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6. Member News

In Who’s Who Legal for Corporate Immigration Law 2013, 11 of the top 15 listings for immigration law are ABIL members. Over 70% of the top immigration lawyers worldwide are members of ABIL, which is the official research partner of the International Bar Association and the strategic research partner of the International Law Section of the American Bar Association.

ABIL members have been appointed to the following American Immigration Lawyers Association committees:

Mark Ivener is on the EB-5 Committee.

H. Ronald Klasko will chair the EB-5 Committee.

Charles Kuck is on the USCIS Field Operations Liaison Committee.

Robert Loughran is serving on the Business Committee.

Sharon Mehlman will serve on the AILA Annual Conference Committee and the DMV/SSA. She is the Vice Chair of the Verification and Worksite Enforcement Committee.

Cyrus Mehta is chair of the Ethics Committee. He has also been appointed to the Access to Counsel Committee.

Angelo Paparelli is on the Access to Counsel Committee.

Bernard Wolfsdorf will serve on the EB-5 Committee and will chair the AILA Midyear Conference to be held January 24, 2014, in the Cayman Islands.

Stephen Yale-Loehr is serving on the AILA Business Committee again this year.

Several ABIL members spoke at the upcoming American Immigration Lawyers Association conference held June 26-29, 2013, in San Francisco, California:

  • Steve Clark spoke on “Labor Certification: The Basics of Audits, Supervised Recruitment & Denials”
  • Bryan Funai spoke on “Advanced E-1/E-2 Visa Issues”
  • Kehrela Hodkinson spoke on “Basics of Consular Processing in Family Cases”
  • H. Ronald Klasko spoke on “Hot Topics With EB-5 Regional Centers”
  • Charles Kuck spoke on “How to Handle DOL and USCIS Investigations”
  • Sharon Mehlman spoke on “Things I Hate About PERM”
  • Cyrus Mehta spoke on “EB-1 in the Age of Kazarian”
  • Angelo Paparelli spoke on “Globalization, Technology, and Telecommuting: Does Where You Are Mean Anything Anymore?”
  • Julie Pearl spoke at the AILA “Global Forum on the Role of Technology in Global Immigration”
  • Bernard Wolfsdorf spoke on “Essentials of EB-5 and Other Investor Visa Options at the Urban Tavern for New Members Division”
  • Mr. Wolfsdorf and Stephen Yale-Loehr spoke on “EB-5: The Essentials of Investment”

AILA CONFERENCE PROGRAM

Mr. Loughran spoke on June 20, 2013, on recent EB-5 Regional Center Revocations at the IIUSA (Invest In USA) Conference in Las Vegas, Nevada.

Mr. Mehta authored a new blog entry. ” How Extraordinary Does One Need To Be To Qualify As A Person of Extraordinary Ability?“ He also co-authored “Meet Our New Friend: Who Is An ‘H-1B Skilled Dependent Employer’ in Senate Immigration Bill, S. 744?”

Mr. Paparelli has posted several new blog entries. “Give Peace a Chance: End the U.S.-India Immigration and Trade War Now” “A Swimmingly Good Immigration Solution to Border Security”

Mr. Wolfsdorf received Who’s Who Legal‘s 2013 Lawyer of the Year award for Corporate Immigration, for the fourth consecutive year.

Mr. Yale-Loehr wrote an op-ed about the Senate immigration bill that was published in El Norte, a Mexican newspaper, on July 4, 2013. He summarized what the Senate bill would do. He said, among other things, that the bill would both benefit and hurt Mexicans: “The Senate bill contains a legalization program, but it requires a long wait and many requirements, so many people may not end up being able to legalize their status. Also, the border security provisions in the Senate bill are too tough. They unnecessarily militarize the border and would harm U.S.-Mexican relations.”

SPANISH VERSION OF MR. YALE-LOEHR’S OP-ED

Mr. Yale-Loehr was featured in several recent LexisNexis PODCASTS and ARTICLES.

Mr. Yale-Loehr was quoted:

  • In the Wall Street Journal on July 2, 2013, in “Snowden’s Asylum Effort Hits Roadblocks.” He said Mr. Snowden could ask Russia to issue him a refugee travel document under the United Nations convention on refugees.
  • In Time.com on July 2, 2013, in “Snowden’s Worst-Case Scenario: What If No Countries Take Him?” He said he thought Mr. Snowden could be in Moscow for a long time, but that he could be helped by Article 28 of the United Nations convention on refugees, which asks member states to give “sympathetic consideration” to those who can’t obtain the necessary documents from their home countries.
  • In the Gannett newspaper chain, in articles about the Senate immigration bill. Commenting on the estimated 11 million people who entered the United States without authorization or overstayed their legal visits before December 31, 2011, who would be offered a 13-year path to citizenship beginning with their application for registered provisional immigrant status, Mr. Yale-Loehr noted that requirements under the Senate bill would exclude some.
  • In TribLIVE/USWorld on June 27, 2013. In “Immigration Bill Unlikely To Pass House,” he noted, “The Senate’s passage of a major immigration reform bill is a milestone, but it is only half the battle. A tougher battle lies ahead in the House.”

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7. EB-5 Government Agency Links

USCIS Web Page on EB-5 Immigrant InvestorsUSCIS Policy and Procedural Memoranda on EB-5 Investors

Immigrant Investor Regional Centers List

Form I-526, Immigrant Petition by Alien Entrepreneur

Form I-829, Petition by Entrepreneur to Remove Conditions

Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program

Form I-924A, Supplement to Form I-924

 

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News from the Alliance of Business Immigration Lawyers Vol. 9, No. 7A • July 01, 2013

July 01, 2013/in Immigration Insider /by ABIL

Headlines:

1. Senate Passes Comprehensive Immigration Reform; House Passage Uncertain – On June 27, 2013, the full Senate passed comprehensive immigration reform legislation, 68-32.

2. Supreme Court’s DOMA Ruling Opens Door to Immigration Benefits for Same-Sex Spouses – About 30,000 same-sex binational couples may now be eligible for immigration benefits, thanks to the Supreme Court’s striking down the 1996 Defense of Marriage Act.

3. Border Patrol Agents Get 30-Year Sentence for Smuggling Migrants Into United States – The agents left their border posts to transport hundreds of migrants in Border Patrol vehicles from Tijuana to California.

4. DOL Releases New Version of Application for Prevailing Wage Determination – Requests submitted before June 18 using the iCERT Visa Portal System based on the previous ETA Form 9141 will be completed and returned using that version of the form.

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. Senate Passes Comprehensive Immigration Reform; House Passage Uncertain

On June 27, 2013, the full Senate passed comprehensive immigration reform legislation, 68-32. All Democrats voted for the bill; 14 Republicans joined them. The bill includes a lengthy pathway to provisional legal status, permanent residence, and eventual U.S. citizenship for up to 11 million undocumented persons. It also includes enforcement and border control measures like finishing a 700-mile fence along the border with Mexico, deploying an additional 20,000 Border Patrol agents, and mandating E-Verify. Despite the potential costs, the Congressional Budget Office estimated that if the bill became law, it would reduce the United States’ deficit by almost $900 billion over the next 10 years.

A celebratory atmosphere ensued after the vote. Despite admonishments from Vice President Joseph Biden, who presided over the vote, chants of “Yes we can” and “Si se puede” were heard from the public gallery after the bill passed. Sen. Patrick Leahy (D-Vt.) called it a “historic day.”

Meanwhile, a bipartisan group in the House is working on its own version of comprehensive immigration reform, but observers expect that the House may pass immigration-related legislation piece by piece instead of voting for a comprehensive bill. House Speaker John Boehner said, “[T]he House is not going to take up and vote on whatever the Senate passes. We’re going to do our own bill.” He said representatives would go home for recess and “listen to our constituents. And when we get back, we’re going to…have a discussion about the way forward.”

DETAILS AND THE TEXT OF THE BILL, S.744

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2. Supreme Court’s DOMA Ruling Opens Door to Immigration Benefits for Same-Sex Spouses

About 30,000 same-sex binational couples may now be eligible for immigration benefits, such as permanent residence based on marriage, thanks to the Supreme Court’s decision on June 26, 2013, in United States v. Windsor, which struck down the 1996 Defense of Marriage Act (DOMA) as unconstitutional. That law had prohibited the federal government from recognizing same-sex marriages, regardless of whether they were legally valid in certain states or in other countries, and from conferring federal benefits on same-sex spouses that are enjoyed by heterosexual spouses.

Janet Napolitano, Secretary of Homeland Security, said she applauded the decision. “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws,” she said. U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas said that USCIS has a list of marriage-based green card petitions that were filed since February 2011 by same-sex binational couples but were denied. He hinted that the cases might be reopened once implementing instructions issue.

The Supreme Court’s ruling doesn’t apply to same-sex couples in states that don’t recognize gay marriage, only to the 13 states that do. There is disagreement among legal observers about whether a gay couple who gets married in one state and moves to another state that doesn’t recognize the marriage will still be entitled to federal benefits.

DOMA DECISION

DETAILS AND ADDITIONAL COVERAGE

FAQ ABOUT THE RULING’S IMPACT ON IMMIGRATION CASES

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3. Border Patrol Agents Get 30-Year Sentence for Smuggling Migrants Into United States

A U.S. District Court judge recently sentenced two Border Patrol agents, Raul Villareal and his brother Fidel, to 30 years in prison for smuggling hundreds of people from Mexico into the United States. Judge John Houston said he deemed their actions a threat to national security. He also ordered one of the brothers to pay a $250,000 fine. The brothers plan to appeal.

An informant notified U.S. Immigration and Customs Enforcement about the operation, which involved the agents leaving their border posts to transport the migrants in Border Patrol vehicles from Tijuana to California. The brothers charged the groups of immigrants, numbering 10, about $10,000 per group. The judge said the brothers made more than $700,000. When the brothers realized they were being investigated, they fled to Tijuana, where they were arrested two years later and extradited to the United States.

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4. DOL Releases New Version of Application for Prevailing Wage Determination

The Department of Labor (DOL) has released a new version of Form 9141, Application for Prevailing Wage Determination.

The revised version of Form 9141 was implemented on the iCERT Portal on June 18, 2013. The DOL made minor changes “to clarify information needed for more efficient application processing.”

Requests submitted before June 18 using the iCERT Visa Portal System based on the previous ETA Form 9141 will be completed and returned using that version of the form, the DOL said. Any form initiated in a user’s system but not yet submitted by that date, however, will not be accepted. In addition, requests on the previous version of Form 9141 can no longer be “reused” in iCERT to submit a new request for processing. Users can complete a new form by logging into their iCERT Portal account, clicking on “Begin New ETA Form 9141,” and completing all the mandatory fields.

FILLABLE FORM

iCERT PORTAL

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5. New Publications and Items of Interest

USCIS Ombudsman’s annual report. U.S. Citizenship and Immigration Services’ (USCIS) Ombudsman Maria M. Odom released the 2013 Annual Report on June 27, 2013. The report notes, among other things, that employers have continued to raise concerns about inappropriate or unduly burdensome requests for evidence (RFEs). The report notes that in the reporting period, USCIS reviewed and posted for public comment RFE templates for several nonimmigrant employment-based categories, excluding H-1B specialty occupations and L-1B intracompany transferees with specialized knowledge. “While the templates offer a valuable mechanism to standardize and improve employment-based case processing, persistent issues remain,” the report notes. “These include USCIS not recognizing various modern business practices and managerial decisions.”

The report also notes that from fiscal years 2010 to 2012, USCIS received nearly 300 percent more filings in the fifth employment-based (EB-5) preference category from immigrants seeking to invest capital and create jobs for U.S. workers. This year the Ombudsman received 441 requests for EB-5 case assistance, representing approximately 10 percent of the office’s workload. The vast majority of these inquiries came from investors and regional center applicants whose cases had been pending beyond normal processing times, the report notes. Other difficulties included a perceived lack of responsiveness by USCIS, the issuance of duplicative RFEs, and needed guidance regarding processing protocols and requirements.

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.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

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.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. 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. See also 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.

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6. Member News

Robert Loughran is serving on the American Immigration Lawyers Association’s Business Committee.

Mr. Loughran spoke on June 20, 2013, on recent EB-5 Regional Center Revocations at the IIUSA (Invest In USA) Conference in Las Vegas, Nevada.

Angelo Paparelli has posted several new blog entries. “Give Peace a Chance: End the U.S.-India Immigration and Trade War Now” “A Swimmingly Good Immigration Solution to Border Security”

Stephen Yale-Loehr was quoted in TribLIVE/USWorld on June 27, 2013. In “Immigration Bill Unlikely To Pass House,” he noted, “The Senate’s passage of a major immigration reform bill is a milestone, but it is only half the battle. A tougher battle lies ahead in the House.”

Mr. Yale-Loehr also was quoted by PolitiFact on June 27, 2013. In “Sen. Jeff Sessions Says Immigration Bill Has Provision That Lets Janet Napolitano Skip Fence,” Mr. Yale-Loehr noted that the provision in question “just gives DHS discretion not to build a fence at a particular location, not discretion to not build a fence at all.”

Mr. Yale-Loehr also was quoted by the News-Leader on comprehensive immigration reform legislation. He said Republicans must walk a fine line. “There are competing constituencies in reforming our broken immigration system. [Big businesses] may provide a lot of cash to fund a campaign, but it is the political base that often determines who wins a primary.”

Mr. Yale-Loehr also was quoted on immigration reform legislation issues in the Newark Advocate. He noted that passing immigration reform could give Republicans a “fighting chance” to win support from newly legalized Hispanic voters.

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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

Visa application wait times for any post

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https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2013-07-01 00:00:452019-09-05 11:02:33News from the Alliance of Business Immigration Lawyers Vol. 9, No. 7A • July 01, 2013

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News

  • BRAZIL: Accepting Work Authorization Applications Thorugh New Digital Certificate System
  • News from the Alliance of Business Immigration Lawyers Vol. 15, No. 9D • September 22, 2019
  • News from the Alliance of Business Immigration Lawyers Vol. 15, No. 9C • September 15, 2019
  • News from the Alliance of Business Immigration Lawyers Vol. 15, No. 9B • September 08, 2019

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