MEXICO: Efforts to Reduce Backlogs and Improve Processing Time Frames

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Extensive efforts to reduce backlogs and improve processing time frames are evident eight months after enactment of the new Migration Act.

After considerable backlogs accumulated during the first half of 2013, the National Immigration Institute (INM) has taken significant steps to enhance the processing time frames in all regional INM offices in Mexico.

Noteworthy changes include the acquisition of printers in all Mexican INM offices to issue new Temporary and Permanent Residence ID cards on site, to reduce the delivery time frames. Formerly, the ID cards were issued at the National Printing Office and eventually sent to the INM for collection, taking 5 weeks on average, compared to the 1-3 business days it takes with the new process.

In addition, the INM office in Mexico City has created special desks to process visa renewal applications and registrations for foreigners who arrive with pre-approved immigration status as temporary or permanent residents. This has reduced the processing times to 1 week in average, compared to the 4 to 6 weeks it used to take.

A new immigration regime has been in existence in Mexico since November 9, 2012, after almost 40 years under the previous scheme.

The changes in the law have caused significant processing delays in visa applications submitted at the INM, also given the immediate change in the Mexican presidency less than a month after the enforcement of the new law, which was followed by the substitution of many of the officers at the INM. Such drastic change in the regime resulted in processing delays due to new policies and ambiguities in the law. As a result, the new officers variously interpreted the criteria as they got used both to their new faculties and the changed policies.

Delays also resulted from the massive dismissal of public servants working at the INM for failure to pass compliance and trust tests, as part of the Mexican government’s anti-corruption efforts. Official sources announced in July of this year the dismissal of more than 620 people working at the INM during the current administration, which has been in office for 6 months.

In addition, the government offered special training by mid-July to immigration officers who are transferring from the Ministry of Foreign Affairs to work in Mexican consulates. The training is designed to prepare consular staff to adjudicate visa applications. There have been delays as the consulates acclimated to their new role. Training is expected to help make the process more efficient.

A steady application of the law has become evident during the second half of 2013, and we expect a stricter application of the law, its regulations, and the guidelines that support the practical application of the new Migration Act. Many of the policies initially contemplated in the Act have yet to be enforced, such as the negativa ficta (i.e., a work visa application is considered denied if no official response is received within 20 business days), the implementation of the points-based system that grants direct access to permanent resident status for highly qualified foreigners, and the quota system.

U.S. Consulate in Chennai Provides Helpful Tips to ABIL

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On August 13, 2013, Alliance of Business Immigration Lawyers (ABIL) founder and past president, Angelo Paparelli, traveled to the U.S. Consulate in Chennai, India, to exchange views between the post and ABIL. He visited with Michael G. Cathey, Deputy Chief of Consular Services; Susan L. Dunathan, Vice Consul; and others. The following is a summary of the visit.

Mr. Cathey welcomed ABIL as part of extensive outreach conducted over the last two years. That outreach has included the business community, visiting attorneys, Business Executive Program (BEP) meetings, and public meetings with business groups. The purpose of the outreach is to educate stakeholders on how they can “help us to get to yes,” he said.

Mr. Cathey noted that the Chennai consulate processes 25% of the world’s H-1B visa applications and 30% of the world’s L-1 visa applications. The post consolidated adjudication of all Indian blanket L-1s in 2011. Fourteen adjudicators work there daily. They process 1,000 nonimmigrant visa (NIV) applications per day (1,300 per day in high season). Each officer conducts 120 NIV interviews per day in a four-to-five-hour time frame. Consular interviews average three to four minutes each (although Ms. Dunathan noted that easy cases from companies they know well, like Google, can be done in one to two minutes, thereby allowing some tougher cases to take up to six minutes for the interview).

Regarding L-1B specialized knowledge, Ms. Dunathan said it is far easier to say what specialized knowledge is not. She said she divides the applicant world between product makers (easier to find specialized knowledge) and service providers (much harder for specialized knowledge). Working with “proprietary tools” does not necessarily qualify for specialized knowledge, whereas developing such tools might.

Both Mr. Cathey and Ms. Dunathan said they don’t consider whether their decisions impact American job opportunities, with Mr. Cathey adding that their mission is to facilitate legitimate personal and business travel to the United States. He offered that for blanket L-1s, his officers operate under the “clearly approvable” standard, which is “way higher than the USCIS’s preponderance of the evidence” test.

Ms. Dunathan noted that “cover letters read like advertising materials” and that consular officers “don’t have time to read a sheaf of papers.” All agreed that the visa applicant’s answers to their “infinitesimally small universe of questions” is what must demonstrate visa eligibility. Mr. Cathey noted that applicants sometimes come woefully unprepared for interviews.

Mr. Cathey explained that in his view the Indian IT consulting companies land a project and then subordinates find human resources to staff it. The visa applicants often know nothing about how or why the project was procured. Mr. Cathey said that companies should focus their interview preparation on educating the applicant on the project. They should ask themselves: “Did our company get this project because we had some articulable value to contribute that was unique in the marketplace and the industry, or because we were the low bidder?” If the former, then specialized knowledge might be feasible; if the latter, then don’t use the L-1 as a substitute for a quota-depleted H-1B. Thus, he urged, a company should focus less on the number of years of the applicant’s experience, and more on why the project was procured. Ms. Dunathan observed that the quality of L-1 submissions plummets each time the H-1B annual cap is reached.

Turning briefly to L-1As, Mr. Cathey asserted that there is no minimum number of subordinates managed (such as 10) to qualify. But he maintained that the blanket L-1’s “clearly approvable” standard made it suitable only for “senior managers.”

Ms. Dunathan stated that she routinely denies L-1A for technology leads w-ho oversee three programmers. In her view, the tech lead does the same work as the subordinates but merely has a scheduling function in addition, which is not management. Mr. Paparelli noted that first-line supervisors of professionals are L-1A managers under the USCIS regulations and that the authority to “recommend personnel decisions” is an indication of manager standing. He also noted, and Mr. Cathey agreed, that the consular officer’s role is not lawmaking or policy but law implementation. Mr. Cathey said his team only follows instructions from State and guidance from USCIS, and “if those change in a way that more folks are eligible, then our visa approvals will correspondingly increase.”

In subsequent comments, Mr. Cathey noted that ” we do not adjudicate companies, we adjudicate applicants. True, some companies may have higher approval rates than others, but that means their employees correctly fit and qualify for their respective visa categories.”

With respect to the Business Express Program (BEP), Mr. Cathey said the requirement of at least 50 cases per year is stringently applied. If the overall number dips below 50, he said, the company is dropped from the BEP.

News from the Alliance of Business Immigration Lawyers Vol. 9, No. 8B • August 15, 2013

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Headlines:

1. USCIS To Conduct I-9 Form Study – Following a study to be conducted in September, USCIS plans to propose a revised I-9 form and invite public comment.

2. State Dept. Releases Cable, FAQ on DOMA – The Department of State recently released a FAQ and a cable to the field, “Next Steps on DOMA—Guidance for Posts.”

3. USCIS Transfers Some Casework Within and Among Service Centers – USCIS recently began transferring some casework within and among service centers to balance workload processing capacity.

4. CBP Expands Global Entry to Republic of Korea, Germany, Qatar, United Kingdom – Global Entry kiosks are available at 34 U.S. airports and 10 CBP preclearance locations in Ireland and Canada that serve 98 percent of all incoming air travelers.

5. ICE SEVP No Longer Mailing Notices of Action for SEVIS Fee Payments – Payment confirmations the user can print from the fee website will replace the I-797C.

6. Eighth Circuit Finds Undocumented Workers Covered Under FLSA – Employers may not exploit undocumented workers’ status or profit from hiring such workers in violation of federal law.

7. India Second Preference Visa Cut-Off Date Advances; Significant New India Demand Expected in Coming Months – The India second preference cut-off date has advanced by more than three years.

8. State Dept. Revises B-2 Nonimmigrant Reciprocity Schedule for Cuba – The Department of State has revised the visa reciprocity schedule for Cuba for B-2 nonimmigrants, changing the validity from 6 months to 60 months.

9. New Publications and Items of Interest – New Publications and Items of Interest

10. Member News – Member News

11. Government Agency Links – Government Agency Links

Details:

1. USCIS To Conduct I-9 Form Study

U.S. Citizenship and Immigration Services (USCIS) is developing a new version of the I-9 employment eligibility verification form. USCIS plans to propose the revised form and invite public comment. The agency is selecting nine employers for a study to determine how much time it takes employers to complete the revised form.

The study will be administered at USCIS offices in Washington, -DC, on September 3, 2013; September 5, 2013; or September 6, 2013, between 8 a.m. and 5 p.m. USCIS announced on August 5, 2013, that interested employers, large and small, were invited to submit a request by August 15, 2013, to volunteer to participate in the study. USCIS said it would randomly selected four large employers and five small employers from all submissions received by the deadline.

USCIS said it will contact the selected employers by August 23, 2013, to schedule an appointment to participate in the study. At the study, the point of contact for the employer will be requested to play the role of an employer completing Section 2 and/or Section 3 of the Form I-9.

ADDITIONAL INFORMATION

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2. State Dept. Releases Cable, FAQ on DOMA

The Department of State recently released a FAQ and a cable to the field, “Next Steps on DOMA—Guidance for Posts.” The cable notes that beginning immediately, consular officers should review visa applications filed by same-sex spouses in the same manner as those filed by opposite-sex spouses, “unless a specific provision of the federal immigration laws requires a different approach.”

The cable notes that the Visa Office deleted a provision in the Foreign Affairs Manual that defined “marriage” for immigration purposes to mean “only a legal union between one man and one woman as husband and wife,” and the word “spouse” to mean only “a person of the opposite sex who is a husband or a wife.” A same-sex marriage is now valid for immigration purposes “as long as the marriage is recognized in the ‘place of celebration,'” the cable states. Such marriages are valid for immigration purposes “even if the couple intends ultimately to reside in one of the 37 states that do not recognize same-sex marriages. Same-sex marriages are valid “even if the applicant is applying in a country in which same-sex marriage is illegal.”

The Department is asking consular sections to identify what types of marriages are available for same-sex couples in-country and to update the visa reciprocity tables.

Also, the cable notes that beginning “immediately,” same-sex spouses and their children are equally eligible for nonimmigrant derivative visas. Same-sex spouses and their children (“stepchildren of the primary applicant when the marriage takes place before the child turns 18”) can qualify as derivatives where the law permits issuance of the visa to a spouse or stepchild without being named on a petition (or if a petition is not required). This includes Diplomat (A), Commonwealth of the Northern Mariana Islands transitional worker (CW), treaty trader/investor (E), international organization employee (G), temporary worker (H), information media representative (I), intracompany transferee (L), North Atlantic Treaty Organization (NATO), extraordinary ability (O), entertainer and athlete (P), religious worker (R), and North American Free Trade Agreement (TN – Trade National) visa categories. If an applicant is otherwise qualified, the cable states, “he/she may be issued a derivative visa starting now.”

Among other things, the cable also notes that many same-sex couples live abroad in countries where they are unable to marry. Starting immediately, same-sex partners of U.S. citizens may apply for fiancé(e) nonimmigrant K-1 visas to wed in the United States, the cable states. Once the union is contracted in a state permitting same-sex marriage, the foreign spouse may apply for adjustment to legal permanent resident status through U.S. Citizenship and Immigration Services (USCIS), or the U.S. citizen may file an I-130 with USCIS. A significant portion of same-sex partners intending to immigrate to the United States may use fiancé(e) visas, the cable notes.

THE CABLE, also includes talking points for posts responding to public and media inquiries

FAQ

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3. USCIS Transfers Some Casework Within and Among Service Centers

U.S. Citizenship and Immigration Services (USCIS) recently began transferring some casework within and among service centers “to balance workload processing capacity.” The affected casework includes, among others, the I-821D, Consideration of Deferred Action for Childhood Arrivals (with accompanying Form I-765, Application for Employment Authorization); I-751, Petition to Remove the Conditions on Residence; I-130, Petition for Alien Relative (F2A category for spouses and children of permanent residents); and I-129F, Petition for Alien Fiancé(e).

USCIS will send a notice to those whose cases were transferred listing the transfer date and where the case will be processed. The original receipt number will not change. When making any case status inquiries, affected persons should reference the original receipt number and indicate that the case was transferred to a new location.

USCIS noted, “If you have filed one of the affected form types and you receive a request for evidence or any other type of communication from USCIS, please read the notice carefully to ensure that you respond to the same service center that sent you the notice.”

Also, starting the week of July 29, 2013, USCIS began redirecting all newly filed I-129F forms from the Vermont Service Center to the Texas Service Center (TSC). The receipt notices will bear a TSC receipt number beginning with “SRC.” These cases will be processed by the TSC. The California Service Center will continue receiving I-129F forms.

NOTICE

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4. CBP Expands Global Entry to Republic of Korea, Germany, Qatar, United Kingdom

U.S. Customs and Border Protection published a Federal Register notice on August 9, 2013, expanding eligibility for participation in Global Entry to citizens from the Republic of Korea, Germany, Qatar, and the United Kingdom. Those participating in Korea’s Smart Entry System (SES), Germany’s Automated and Biometrics-Supported Border Controls (ABG) Plus, and select Qatar and United Kingdom citizens may be able to receive Global Entry benefits.

Additionally, the Federal Register notice announces the ability for current U.S. Global Entry members to apply for membership in the Republic of Korea’s SES program, and for a limited number to apply for Germany’s ABG Plus program.

Global Entry kiosks are available at 34 U.S. airports and 10 CBP preclearance locations in Ireland and Canada that serve 98 percent of all incoming air travelers. To become a member of Global Entry, interested individuals must fill out an online application, pay the $100 application fee, undergo a background investigation, and complete an interview with a CBP officer at a Trusted Traveler enrollment center, which includes submission of fingerprints. Upon approval, membership is valid for five years.

CBP noted that Global Entry “allows pre-approved, low-risk travelers the ability to bypass traditional CBP screening and use and automated kiosk to complete their entry into the U.S. upon arrival.”

NOTICE

FEDERAL REGISTER NOTICE

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5. ICE SEVP No Longer Mailing Notices of Action for SEVIS Fee Payments

U.S. Immigration and Customs Enforcement announced that as of July 31, 2013, the Student and Exchange Visitor Program (SEVP) is no longer mailing the Form I-797C, Notice of Action, for I-901 SEVIS (Student and Exchange Visitor Information System) fee payments. Payment confirmations the user can print from the fee website (https://www.fmjfee.com/i901fee/index.jsp) will replace the I-797C. ICE said that the printed confirmation “will serve as proof of payment for the I-901 SEVIS fee.”

The paper I-901, which no longer contains a field for expedited receipt delivery, is available on the SEVP website.

NOTICE

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6. Eighth Circuit Finds Undocumented Workers Covered Under FLSA

The U.S. Court of Appeals for the Eighth Circuit recently found that employers may not exploit undocumented workers’ status or profit from hiring such workers in violation of federal law.

For varying periods between June 2007 and March 2010, Elmer Lucas and five other undocumented workers toiled in the Jerusalem Café, some for less than minimum wage and all without receiving overtime wages. The workers sued the Café, and its then-owner Farid Azzeh and manager Adel Alazzeh, for willfully violating the Fair Labor Standards Act of 1938 (FLSA). A jury decided in the workers’ favor, and the district court for the Western District of Missouri awarded the workers minimum and overtime wages, statutory liquidated damages, and legal fees. The district court denied the employers’ motion for judgment as a matter of law, rejecting the argument that the workers, as noncitizens without work authorization, lacked standing to sue. The employers appealed, contending the FLSA does not apply to employers who illegally hire unauthorized workers.

The Eighth Circuit rejected the employer’s argument, finding that the FLSA does not allow employers to exploit any employee’s immigration status or to profit from hiring unauthorized workers in violation of federal law. The court acknowledged the principle that “breaking one law does not give license to ignore other generally applicable laws.” Among other things, the court noted:

Congress’s purposes in enacting the FLSA and the IRCA [Immigration Reform and Control Act of 1986] are in harmony. The IRCA unambiguously prohibits hiring unauthorized aliens, and the FLSA unambiguously requires that any unauthorized aliens—hired in violation of federal immigration law—be paid minimum and overtime wages. The IRCA and FLSA together promote dignified employment conditions for those working in this country, regardless of immigration status, while firmly discouraging the employment of individuals who lack work authorization. ‘If an employer realizes that there will be no advantage under the’ FLSA ‘in preferring [unauthorized] aliens to legal resident workers, any incentive to hire such … aliens is correspondingly lessened.’ Sure-Tan, 467 U.S. at 893. Exempting unauthorized aliens from the FLSA would frustrate the purposes of the IRCA, for unauthorized workers’ ‘acceptance … of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens.” De Canas v. Bica, 424 U.S. 351, 356-57 (1976).

OPINION

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7. India Second Preference Visa Cut-Off Date Advances; Significant New India Demand Expected in Coming Months

The India second preference cut-off date has advanced by more than three years, to January 1, 2008. In July, it stood at September 1, 2004. The Department of State’s Visa Bulletin for August 2013 notes that the advance is in an effort to fully use the numbers available under the overall employment second preference annual limit. “It is expected that such movement will generate a significant amount of new India demand during the coming months,” the bulletin notes, adding that “some type of ‘corrective’ action will be required at some point during FY 2014 in an effort to maintain number use within the applicable annual limits. Such action would involve the establishment and retrogression of such cut-off dates, and could occur at any time.”

AUGUST 2013 VISA BULLETIN

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8. State Dept. Revises B-2 Nonimmigrant Reciprocity Schedule for Cuba

The Department of State has revised the visa reciprocity schedule for Cuba for B-2 nonimmigrants, changing the validity from 6 months to 60 months.

UPDATES

FULL SCHEDULE OF VISA FEES AND VALIDITY PERIODS

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9. 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. Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.’

This comprehensive guide is designed to be used by:

  • Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
  • Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
  • Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

  • An overview of the immigration law requirements and procedures for over 20 countries;
  • Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
  • A general overview of the appropriate options for a particular employee; and
  • Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or [email protected].

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012. 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]. 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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10. Member News

The following ABIL members were selected by their peers for inclusion in the 20th Edition of The Best Lawyers in America in the practice area of Immigration Law:

Laura Danielson
Steve Garfinkel
Kenneth Ing
H. Ronald Klasko
Charles Kuck
Sharon Mehlman
John Nahajzer
Linda Rahal
Bernard Wolfsdorf
Stephen Yale-Loehr

The following ABIL members were recognized as Top Rated Lawyers for 2013 by Martindale-Hubbell and American Lawyer Media:

Rami Fakhoury)
Mark Ivener
Bernard Wolfsdorf

Robert Loughran spoke on August 8, 2013, at the West Texas Legislative Summit on the campus of Angelo State University on “Proposed Legislative and Procedural Changes to Immigration Law.”

Mr. Loughran presented on August 2, 2013, on “Potential Changes to Immigration Law in the Second Obama Term and Implications for Employers”; “Strategizing Short-Term Assignments: Limitations for Visitors”; and “How To Turn Your Immigration Program Into a Key Retention Tool” at the Austin Human Resource Management Association’s annual “Playbook for Success” conference in Austin, Texas.

Mr. Loughran spoke on July 11, 2013, on nonimmigrant visas and immigration basics at the Texas Association of School Personnel Administrators’ 2013 conference in Austin, Texas. The presentation included an overview of employment-based immigration and its three-step process, including a look at the employer’s role in sponsoring visas. MORE INFORMATION

Cyrus Mehta has published a new blog entry. “How California’s AB 1159 Will Hurt Immigration Lawyers and Their Clients: A New York Immigration Lawyer’s Perspective”

Angelo Paparelli was quoted in the Washington Post on August 3, 2013, in an article on how some employers help immigrants naturalize. Mr. Paparelli noted that although high-tech companies frequently sponsor foreign workers for visas or green cards, most companies have not gotten involved in the naturalization process. He said their involvement usually ends at getting work authorization, unless the employee needs to travel extensively overseas or obtain a national security clearance only available to a U.S. citizen.

Mr. Paparelli authored a new blog entry. “Immigration Mystery Revealed: The Occult Process Behind Nonimmigrant Visa Waivers”

Bernard Wolfsdorf co-authored a blog entry, “8 Issues That Must Be Addressed When Documenting Source of Funds for Chinese EB-5 Cases”

Mr. Wolfsdorf moderated a panel, “EB-5—$500,000/$1M Investor Green Cards” at a conference on August 14, 2013. The session delved into the EB-5 immigrant investor landscape with a particular focus on hot topics and tips, and how to avoid pitfalls.

Stephen Yale-Loehr was interviewed on August 14, 2013, on the Kojo Nnamdi show on WAMU about the EB-5 immigrant investor green card program. The EB-5 program is now part of Virginia’s gubernatorial race because Terry McAuliffe, the Democratic candidate for governor, is linked to a car company that made use of those visas to solicit foreign investment.

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11. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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News from the Alliance of Business Immigration Lawyers Vol. 9, No. 8A • August 01, 2013

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Headlines:

1. DOL Proposes To Delay Effective Date of H-2B Wage Methodology Final Rule Indefinitely – The wage rule revised the methodology by which the DOL calculates the prevailing wage to be paid to H-2B workers and U.S. workers recruited in connection with temporary labor certifications to employ H-2B nonimmigrant workers.

2. USCIS Updates DOMA FAQ – The latest FAQ notes that U.S. citizens and lawful permanent residents in same-sex marriages to foreign nationals can now sponsor their spouses for family-based immigrant visas, and that spouses who were married in a U.S. state or foreign country that recognizes same-sex marriage, but who live in a state that does not, can file immigrant visa petitions for their spouses.

3. ABIL Global: South Africa – A significant amendment to the law is expected in the next few months that will affect transferring employees and their families to South Africa.

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. DOL Proposes To Delay Effective Date of H-2B Wage Methodology Final Rule Indefinitely

The Department of Labor (DOL) proposes to delay indefinitely the effective date of the “Wage Methodology for the Temporary Non-Agricultural Employment H-2B Program” final rule (2011 wage rule) “to comply with recurrent legislation that prohibits the [DOL] from using any funds to implement it, and to permit time for consideration of public comments sought in conjunction with an interim final rule published April 24, 2013, 78 FR 24047.”

The 2011 wage rule revised the methodology by which the DOL calculates the prevailing wage to be paid to H-2B workers and U.S. workers recruited in connection with temporary labor certifications to employ H-2B nonimmigrant workers. The 2011 wage rule was originally scheduled to become effective on January 1, 2012, and the effective date has been extended a number of times, most recently to October 1, 2013. The Department is now proposing to delay the effective date of the 2011 wage rule “until such time as Congress no longer prohibits the [DOL] from implementing” it.

DOL explained that, among other things, the appropriations bill enacted in November 2011 prevented funding but did not prohibit the 2011 wage rule from going into effect. The DOL explained that the 2011 wage rule would supersede and nullify the prevailing wage provisions at 20 CFSR 655.10(b) of the DOL’s existing H-2B regulations. Accordingly, in light of the November 2011 appropriations bill, the DOL decided to delay the effective date of the 2011 wage rule. If the wage rule had taken effect, the DOL explained, “[s]uch an occurrence would have rendered the H-2B program inoperable because the issuance of a prevailing wage determination is a condition precedent to approving an employer’s request for an H-2B labor certification.”

Subsequent appropriations legislation contained the same restriction prohibiting the DOL’s use of appropriated funds to implement, administer, or enforce the 2011 wage rule and, the DOL said, necessitated subsequent extensions of the effective date of that rule. The DOL therefore now proposes to delay the effective date indefinitely until such time as the rule can be implemented with appropriated funds.

Additionally, the DOL and the Department of Homeland Security (DHS) recently promulgated an interim final rule, requesting comments, to establish a new wage methodology in response to CATA v. Solis, decided in 2013. The interim final rule requires prevailing wage determinations issued using the Occupational Employment Statistics (OES) survey to be based on the mean wage for an occupation in the area of intended employment, without tiers or skill levels. The comment period closed on June 10, 2013, and the DOL and DHS are reviewing the comments and determining whether further revisions to 20 CFSR 655.10(b) are warranted.

DOL explained that the confluence of the recent Congressional prohibition of implementation of the 2011 wage rule and the DOL’s current review and consideration of comments made in response to the proposed new wage methodology require the indefinite delay of the effective date of the 2011 wage rule. Even if Congress lifts the prohibition of implementation of the 2011 wage rule, the DOL said it would need time to assess the current regulatory framework; consider any changed circumstances, novel concerns, or new information received; and minimize disruptions.

The DOL invites comment until August 9, 2013, on the proposed indefinite delay of the effective date of the 2011 wage rule. If Congress should no longer prohibit implementation, the DOL would publish a notice in the Federal Register within 45 days on the status of 20 CFR 655.10 and the effective date of the 2011 wage rule.

DOL’S FEDERAL REGISTER NOTICE OF PROPOSED RULEMAKING

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2. USCIS Updates DOMA FAQ

U.S. Citizenship and Immigration Services has updated its frequently asked questions (FAQ) on same-sex marriages under the Supreme Court’s recent decision holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional. The latest FAQ notes that U.S. citizens and lawful permanent residents in same-sex marriages to foreign nationals can now sponsor their spouses for family-based immigrant visas. Their eligibility will be determined according to applicable immigration law and they will not be denied because of a same-sex marriage.

The FAQ also notes that spouses who were married in a U.S. state or foreign country that recognizes same-sex marriage, but who live in a state that does not, can file immigrant visa petitions for their spouses. The FAQ states that as a general matter, “the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes.”

The FAQ also includes information about applying for benefits, what to do about previous denials, changes in eligibility based on same-sex marriage, residence requirements, inadmissibility waivers.

FAQ

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3. ABIL Global: South Africa

A significant amendment to the law is expected in the next few months that will affect transferring employees and their families to South Africa.

Transferring Employees and Their Families to South Africa

Under current South African immigration law, a company can transfer or deploy one or more of its employees to a company that is “operating in South Africa.” This is on condition that the two companies are in a holding, subsidiary, or “affiliate relationship.”

There are three key conditions to qualify for such a permit. First, the person must be an existing employee who will return to his or her employment at the offshore company at the end of the term of the deployment. Second, the company in South Africa must in fact be operating. And third, there must be a qualifying relationship between the two companies. The term “affiliate relationship” is not defined and deliberately allows for considerable flexibility. These permits are usually issued for a two-year period and cannot be renewed or extended.

The permit requirements fall into two broad categories: those that are specific to the intra-company transfer work permit and those that are required for any permit that authorizes a period of residence in South Africa of more than three months. The key requirements specific to the intra-company transfer work permit include, among other things, a copy of the employee’s offshore contract and proof that he or she has the skill needed for the assignment in South Africa.

All family members (assuming they are not South African citizens or permanent residents) accompanying the foreign national to be transferred, no matter their ages, must apply for appropriate permits to reside in South Africa.

As may be suggested by the “transfer” permit’s name, South Africa’s permit system is activity-specific. So if the family includes dependents who will be studying at a tertiary institution or a school (but excluding a pre-school), they must obtain study permits before they can attend the institution. If the dependent is not attending school or is home-schooling, he or she needs a long term visitor permit to accompany the holder of the transfer permit.

For purposes of residence in South Africa, the Immigration Act recognizes non-formalized life partnerships and does not discriminate based on sexual orientation. Couples do not need to be married or in a civil union for purposes of obtaining a residence permit. But the couple will need to prove the fact of the spousal relationship. The term “spouse” refers to the partner, whether married or not. The relationship must be monogamous. The spouse also must obtain a long-term visitor permit to accompany the holder of the transfer permit.

There is no special dispensation for the spouse who wishes to study, be employed, or be self-employed, while in South Africa. They (and/or the place of learning or employer) must comply with all the relevant prescribed requirements of the appropriate temporary residence permit. This is the case even if the spouse wishes to work (or remain working) for an employer back home even where the company does not have a presence in South Africa. [There is a special dispensation for persons who are in a spousal relationship with a South African citizen or permanent resident. Please consult your Alliance of Business Immigration Lawyers attorney about this.]

Under current policy, the South African Department of Home Affairs prefers that people seeking to take up a post in South Africa (and their families), should apply for the appropriate permit at the nearest South African embassy or consulate and have obtained the permit(s) before they leave for South Africa. Application can be made for all the appropriate permits (for the transferee, the spouse, and the children) at the same time. The consequent permit, if approved, will be endorsed into the applicant’s passport.

The general rule is that foreign nationals must at all times have a permit in their passport that accurately describes the purpose and period for which they have been authorized to enter and remain in South Africa. If those circumstances change, the person must apply to the Department of Home Affairs for authorization to remain in the country under those changed circumstances.

A significant amendment to South African law is expected in the next few months. It is imperative that proper and comprehensive advice be sought from a skilled immigration attorney.

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4. New Publications and Items of Interest

Selected statistics by program. The Department of Labor’s Office of Foreign Labor Certification (OFLC) has updated program fact sheets with FY 2013 third-quarter selected statistics for the permanent labor certification, prevailing wage determination, H-1B temporary visa, H-2A temporary agricultural visa, and H-2B temporary non-agricultural visa programs.

UPDATED FACT SHEETS (click on the “Selected Statistics by Program” tab under the introductory paragraph).

Also, The OFLC PERM, H-2A, H-2B, prevailing wage, and H-1B program disclosure data files for Quarter 3 of FY 2013 are now available. DISCLOSURE FILES AND CORRESPONDING RECORD LAYOUTS

Stakeholder teleconference on business issues. USCIS’ Nebraska Service Center will hold a stakeholder teleconference on business issues on Thursday, August 8, 2013, at 10 a.m. central time. Topics will include premium processing, I-140, I-360, I-485 EB, I-765 riding with EB I-485, I-131 riding with EB I-485, waivers as appropriate, I-824 as appropriate, and I-765(c)(9). Those wishing to be added to the distribution list for calls should email [email protected]. Call-in information will be released at a later date.

Department of Justice educational video on employment eligibility verification discrimination. The Department of Justice’s Office of Special Counsel (OSC) released an educational video on July 11, 2013, to assist employers in avoiding charges of discrimination in the employment eligibility verification Form I-9 process and in the use of E-Verify. The video also helps educate employees about their legal rights. The OSC said it developed this video to address issues that frequently arise from calls to its hotline and charges filed. “Employers sometimes incorrectly believe that they need to request more documents than are necessary for the employment eligibility verification form I-9. Additionally, employers using E-Verify may improperly request specific documents due to misunderstanding of E-Verify requirements.” OSC’s new video highlights some practices that are not permissible and that could lead to discrimination claims.

OSC VIDEO

NOTICE ANNOUNCING THE VIDEO The latest OSC video is part of OSC’s EDUCATIONAL VIDEO SERIES. OSC also operates a hotline for employers and workers, providing guidance to employers on how to avoid discrimination and educating employees on their rights. In addition, OSC offers live webinars for both employers and employees. For more information about protections against employment discrimination under the immigration laws, call OSC’s worker hotline at: 1-800-255-7688 (1-202-616-5525, TTY for the hearing impaired); call OSC’s employer hotline at: 1-800-255-8155 (1-202-616-5525, TTY for the hearing impaired); email [email protected]; or visit OSC’s WEBSITE.

USCIS reports on H-1B. USCIS has released several fiscal year 2012 annual reports to Congress:

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. Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.’

This comprehensive guide is designed to be used by:

  • Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
  • Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
  • Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

  • An overview of the immigration law requirements and procedures for over 20 countries;
  • Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
  • A general overview of the appropriate options for a particular employee; and
  • Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or [email protected].

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012. 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]. 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

Mark Ivener served on the “Advanced – Best Practices for Investor Filings” and “Joint Overview of USCIS Policy Memo” panels at the Southern California EB-5 Conference in Newport Beach, California, on July 15, 2013.

Sharon Mehlman will speak at the American Immigration Lawyers Association’s PERM conference in Chicago, Illinois, on August 19, 2013. The topic is “The Dreaded PERM Audit and How the Compliance File May or May Not Help.”

Cyrus Mehta has authored or co-authored several new blog entry. “Bad Timing Alberto: BIA Has Confirmed That Same Sex Spouses Are Entitled To Immigration Benefits After US v. Windsor” “Hey Boss, I Need Premium Processing: Can an H-1B Employee Pay the Premium Processing Fee?”

Angelo Paparelli has published several new blog entries. ‘If Immigration Law Were a Person It Would Sing: ‘Oh Lord, Please Don’t Let Me Be Misunderstood” “You Say You Want a Devolution—In Immigration That Is”

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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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