News from the Alliance of Business Immigration Lawyers Vol. 9, No. 9A • September 01, 2013
Headlines:
1. DHS Inspector General Releases Report on Implementation of L-1 Visa Regulations – Among other things, the report says that more communication between the Departments of Homeland Security and State would improve the processing of blanket L-1 petitions.
2. Special Immigrant Visa Program for Iraqis Set To Expire – Individuals applying under this program, including family members, must be admitted to the United States or adjust their status before October 1, 2013.
3. BALCA Affirms Denial of Labor Cert for Technical Violation in Supervised Recruitment – An employer’s reference to resumes in the file instead of listing the addresses as required was a “wholesale failure to provide an element of a report directly mandated by the regulations.”
4. Labor Dept. Indefinitely Delays H-2B Wage Methodology Final Rule – The interim final rule establishing the current prevailing wage methodology for the H-2B program remains in effect.
5. State Dept. Transitions to Online Immigrant Visa Application – The new online forms replace the paper DS-230 and DS-3032.
6. OSC Discourages Pre-Population of I-9 Forms – Among other things, the OSC noted that pre-population increases the likelihood of including inaccurate or outdated information.
7. OSC Recommends Against Contractor Requiring Subcontractor’s Employees To Produce Original I-9 Documents – This type of scenario could present a number of problems, the OSC warned.
8. ABIL Global: Mexico – Extensive efforts to reduce backlogs and improve processing time frames are evident eight months after enactment of the new Migration Act.
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. DHS Inspector General Releases Report on Implementation of L-1 Visa Regulations
On August 9, 2013, the Department of Homeland Security (DHS)’s Office of Inspector General (OIG) released a report containing recommendations aimed at improving the L-1 visa program in response to a request from Sen. Charles Grassley for an examination of the potential for fraud or abuse in the program. The L-1 visa program facilitates the temporary transfer of foreign nationals with management, professional, and specialist skills to the United States. For the report, the OIG observed DHS personnel and Department of State consular officials process L-1 petitions and visas. The OIG also interviewed 71 managers and staff in DHS and the Department of State.
The OIG found that although U.S. Citizenship and Immigration Services regulations and headquarters memoranda provide guidance on the definition of specialized knowledge, they are insufficient to ensure consistent application of L-1 visa program requirements in processing visas and petitions. More communication between DHS and the Department of State would improve the processing of blanket petitions, the report says. The OIG determined that program effectiveness would be improved and risks reduced with additional effort in (1) training for U.S. Customs and Border Protection officers to enable them to fill their L-1 gatekeeper role at the northern land border more effectively; (2) improving internal controls of the fee collection effort at the northern land border; (3) more rigorous consideration of new office petitions to reduce fraud and abuse; (4) providing an adjudicative tool that is accessible to all federal personnel responsible for L-1 decisions; and (5) consistently applying Visa Reform Act anti-“job-shop” provisions to L-1 petitions.
An appendix notes that the top 10 L-1 employers are Tata Consultancy Services Limited, Cognizant Tech Solutions US Corp, IBM India Private Limited, Wipro Limited, Infosys Technologies Limited, Satyam Computer Services Limited, HCL America Inc., Schlumberger Technology Corp., PricewaterhouseCoopers LLP, and Hewlett-Packard Co.
REPORT, which includes details on the OIG’s recommendations and USCIS’s response, along with appendices containing statistics.
2. Special Immigrant Visa Program for Iraqis Set To Expire
The Special Immigrant Visa (SIV) program for Iraqi nationals who worked for or on behalf of the U.S. government will expire on September 30, 2013. Individuals applying under this program, including family members, must be admitted to the United States or adjust their statuses before October 1, 2013.
The program covers Iraqi nationals who have been employed by or on behalf of the U.S. government in Iraq for a period of at least one year, from March 20, 2003, to the present. The expiration date also applies to spouses and unmarried child(ren) accompanying or following to join the principal applicants.
As announced at its inception, the Iraqi SIV program will expire on September 30, 2013, at 11:59 p.m. EDT unless Congress extends the program. After September 30, 2013, USCIS will reject any petitions or applications filed based on the Iraqi SIV program. Beginning on October 1, 2013, USCIS will suspend processing of any pending Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, or Form I-485, Application to Register Permanent Residence or Adjust Status, filed based on the Iraqi SIV program.
3. BALCA Affirms Denial of Labor Cert for Technical Violation in Supervised Recruitment
In Matter of JP Morgan Chase & Co., the Board of Alien Labor Certification Appeals (BALCA) upheld the denial of a labor certification application filed by JP Morgan Chase for a vice president of mergers and acquisition because the company noted that addresses of applicants were included in their resumes instead of listing them as required. The BALCA noted that the regulation required the employer to “state” the addresses of the U.S. workers who applied for the job opportunity on the recruitment report itself and does not permit addresses to be incorporated by reference to other documents within the administrative file. Moreover, the employer appeared to have assumed that all of the applicants stated their address on their resumes, but there were a few resumes where no address was stated.
The BALCA acknowledged that some omissions may not be material to the review of the substance of an application. In this case, however, the BALCA found the reference to the resumes a “wholesale failure to provide an element of a report directly mandated by the regulations.”
The BALCA also noted that the selection of the case for supervised recruitment “puts the employer on notice that special scrutiny is being placed on the application.” Among other things, the recruitment report required under supervised recruitment is more detailed than the recruitment report required under basic labor certification processing. Simply put, the BALCA said, an employer “cannot shift the burden to the [Certifying Officer] to look through resumes to find the addresses of U.S. applicants.”
4. Labor Dept. Indefinitely Delays H-2B Wage Methodology Final Rule
The Department of Labor’s Employment and Training Administration has delayed indefinitely the effective date of its final rule on the wage methodology for the H-2B temporary non-agricultural employment) to comply with legislation that prohibits the agency from using any funds to implement it, and to permit time for consideration of public comments on the interim final rule published in April 2013.
The final rule would have revised the methodology by which the Department calculates the prevailing wages paid to H-2B workers and U.S. workers recruited in connection with a temporary labor certification to employ a nonimmigrant in H-2B status. The interim final rule establishing the current prevailing wage methodology for the H-2B program remains in effect.
5. State Dept. Transitions to Online Immigrant Visa Application
The Department of State is transitioning to an online immigrant visa application, effective September 3, 2013. The new online forms replace the paper DS-230 and DS-3032. Only Diversity Visa and Cuban Family Reunification Parole applicants will continue to use the paper forms.
Immigrant visa applicants will now apply online using Form DS-260 (Application for Immigrant Visa and Alien Registration), and applicants will name their agent online using Form DS-261 (Choice of Address and Agent).
6. OSC Discourages Pre-Population of I-9 Forms
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a query about whether pre-population of employee information in section 1 of the Form I-9, Employment Eligibility Verification, is permissible. The query stated that U.S. Immigration and Customs Enforcement had said that pre-population is impermissible.
The OSC’s response noted that the I-9 instructions state that the employee must complete and sign section 1. Someone may assist the employee if he or she is unable to complete the form.
The OSC said that it discourages employers from pre-populating section 1 with previously obtained employee information. The agency noted that this increases the likelihood of including inaccurate or outdated information, which could lead an employer to reject documents presented or demand specific documents. This is particularly true, the OSC noted, if the employer does not provide an opportunity for the employee to review the information that was pre-populated and build in a method for making corrections. Further, the OSC noted, a mismatch could result if the employer uses outdated information to submit an E-Verify query.
OSC’s RESPONSE, which includes additional details
7. OSC Recommends Against Contractor Requiring Subcontractor’s Employees To Produce Original I-9 Documents
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a query about whether a contractor can require employees of subcontractors to produce the original documentation they had used for I-9 work authorization verification purposes for employment with the subcontractor.
The OSC did not delve into the specifics of the particular case in question, but said that in general, this type of scenario could present a number of problems. For example, the I-9 requirements note that an employer must review the documentation presented by an employee within three days of hire. If a general contractor were to ask the employee of a subcontractor to produce such documents a second time, given the passage of time that likely would have transpired, the employee may no longer have the documents originally presented. This could be the case because, for example, a document has expired and the employee now has a newer version; the employee has a different document due to adjustment of status and has forfeited the originally presented document; or the document was lost, stolen, or misplaced. If such an individual is then barred from employment, he or she may perceive that the general contractor and/or subcontractor has discriminated against him or her based on citizenship or immigration status. Because the proposed practice relates to the original I-9 verification process, such employees could allege discriminatory I-9 practices in violation of the antidiscrimination provisions of the law.
8. ABIL Global: Mexico
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.
9. New Publications and Items of Interest
Role of the E-Verify Monitoring and Compliance Branch. U.S. Citizenship and Immigration Services has released an executive summary, “Role of the E-Verify Monitoring and Compliance Branch.” The summary outlines information delivered at a teleconference held in April 2013, during which M&C “subject matter experts” provided an overview of their role and responsibilities as part of the E-Verify employment eligibility verification process. Some of the common errors M&C has observed include creating duplicate cases for the same employee; immediately terminating employees who receive a tentative nonconfirmation; failing to create a case by the third day after the employee started work for pay; creating cases for employees who were hired before the E-Verify participant enrolled in E-Verify; and not reviewing acceptable documents or a document containing a photo.
The summary lists resources, and recommends as a “best practice” familiarity with the most recent version of the E-Verify User Manual for Employers.
E-Verify User Manual for Federal Contractors
Manual for Corporate Administrators
The summary also mentions the E-Verify Self-Assessment Guide, which assists participating employers in complying with user requirements.
LINKS TO A VARIETY OF E-VERIFY MANUALS AND GUIDES
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 [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.
10. Member News
The following ABIL members have been ranked among the top lawyers in the country, in the following categories:
American Lawyer Media and Martindale-Hubbell 2013 Top Rated Lawyers in Immigration Law:
Laura Danielson
Rami Fakhoury
Mark Ivener
Charles Kuck
Sharon Mehlman
Bernard Wolfsdorf
Top 25 Attorneys in EB-5 by the EB-5 Investors Magazine:
Mark Ivener
H. Ronald Klasko
Charles Kuck
Angelo Paparelli
Stephen Yale-Loehr
Martindale Hubbell AV Rated:
Laura Danielson
Rami Fakhoury
Steve Garfinkel
Mark Ivener
H. Ronald Klasko
Charles Kuck
Sharon Mehlman
Angelo Paparelli
Bernard Wolfsdorf
Stephen Yale-Loehr
H. Ronald Klasko was also named one of the “Most Powerful Employment Attorneys in Immigration Law” in the United States by Human Resource Executive magazine. The magazine so named 20 lawyers in the country in its June 16, 2013, edition.
Mr. Klasko was appointed chair of the EB-5 Investor Committee of the American Immigration Lawyers Association. This was his fourth appointment to chair this committee.
Robert Loughran was selected for inclusion in the 20th Edition (2014) of The Best Lawyers in America in the practice area of Immigration Law.
Mr. Loughran will be the discussion leader for the ILW EB-5 Summit for Attorneys and Developers and will speak on “Developing the I-924 Application For Regional Center Under the Immigrant Investor Pilot Program” and “Documenting Job Creation Through the I-829 Petition by Entrepreneur to Remove Conditions.” The EB-5 Summit will be held at the Westin O’Hare in Chicago on Friday, September 6, 2013. The discussion is open to anyone interested in learning more about the EB-5 visa. More information.
Mr. Loughran will provide an “Update on Increased Government Investigations” at the 2013 FosterQuan Corporate Compliance Seminar to be held at the Westin Memorial City in Houston, Texas, on Tuesday, September 10, 2013. The seminar will feature government representatives and other experts discussing immigration challenges facing all employers. Timely updates, strategic advice for immigration compliance, and best practices critical to all employers will be provided, including Form I-9 Compliance and issues related to mergers and acquisitions and discrimination; E-Verify; and ICE/HSI investigations.
Cyrus Mehta recently co-authored or authored several new blog posts. “America’s Role In Syria After the Chemical Weapons Attack And Immigration Reform” is available at http://blog.cyrusmehta.com/2013/08/americas-role-in-syria-after-chemical.html. “Nearly 12 Years After 9/11 Applicants Perceived as Muslims Still Targeted Under a Secret Immigration Program“”The Lazarus Effect: How Comprehensive Immigration Reform Can Survive the House GOP and Come Back to Life”
Pearl Law Group has won the Bronze Stevie® Award in the 2013 International Business Awards for “Most Innovative Company of the Year” in North America. The firm was considered among more than 3,300 nominees in more than 50 nations. MORE INFORMATION.
Angelo Paparelli has authored a new blog post: “”.
Stephen Yale-Loehr will speak on EB-5 immigrant investor issues on a webinar sponsored by the Council of Development Finance Agencies on September 18, 2013. Topics will include direct EB-5 vs. EB-5 regional center programs, minimum investment requirements, securities regulations, and business plans and economic reports. MORE DETAILS OR TO REGISTER.
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