News from the Alliance of Business Immigration Lawyers Vol. 9, No. 8A • August 01, 2013
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
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.
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.
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 ceo.nsc@dhs.gov. 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.
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 osccrt@usdoj.gov; 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.
- 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.
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”
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