PERU: New Law to Regularize Residence of Foreigners in Irregular Immigration Status

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A new law establishes a procedure to regularize the residence of foreigners who are in irregular immigration status.

On November 8, 2013, Law No. 30103 was published in the Official Gazette of Peru. The new law establishes a procedure to regularize the immigration status of foreign nationals who entered Peruvian territory before January 1, 2012. The law provides for either a temporary or a resident visa under determined immigration status if they have been in an irregular immigration status in Peru.

Deadline and Where To Apply for Immigration Regularization

The deadline to apply is 180 calendar days since the law has been in force.

The application must be filed before the National Superintendence of Migration (MIGRACIONES), with the required documentation applicable to the foreign national.

Assumptions of Irregularity

It is considered “irregular migratory status” if a foreign national has entered Peru legally but has an expired stay authorization or expired resident permit.

Granting of the Resident Visa

MIGRACIONES will provide to an eligible foreign applicant a resident visa for a maximum period of two years the immigration status of worker (WRA), independent professional (IPA), or familiar resident, as applicable. The resident permit is renewable annually, subject to compliance with requirements under immigration law.

After approval of the resident visa, the foreign national will be registered at the Central Register of Foreigners and his or her foreign card will be issued, provided that the requirements under the TUPA (Unique Text of Administrative Proceedings) have been complied with and required fees have been paid.

Reserve Assumptions for Enforcement

Peru, through MIGRACIONES, reserves the right to reject an applicant for a resident visa if the agency determines that his or her presence is a detriment to Peru’s sovereign interests, or a national security or internal order risk, based on a background check and information provided by INTERPOL, the judiciary, or other entities, as appropriate.

MERCOSUR Citizens

Foreigners with irregular immigration status belonging to MERCOSUR countries may opt to apply the “Agreement on Residence for Nationals of State Parties of MERCOSUR, Bolivia and Chile,” signed on December 6, 2002.

Assumptions of Exception in the Scope of the Law

Not included in the scope of the new law are cases of foreign citizens who, having been ordered to leave, never left the country or have returned without authorization, and those who have an enforceable and final judgment of expulsion after serving a custodial sentence.

Regulations and Validity

The Peruvian government must issue regulations within 60 calendar days of enactment of the law, which took effect November 9, 2013.

INDIA: Proposed Amendments to

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One chamber of the Indian Parliament has proposed amendments to “Overseas Citizen of India” status. If passed into law, among other things, “Overseas Citizen of India” status will be known as “Overseas Indian Cardholder” instead.

The proposed amendments are being made to the Citizenship Act, 1955 (Act), which provides for the acquisition and determination of Indian citizenship, the procedure for registration as an Overseas Citizen of India (OCI), and renunciation and termination of citizenship under certain circumstances. The Act has been amended occasionally relating to registration and renunciation of OCI status.

The Citizenship (Amendment) Bill 2013 (Bill) was passed by the Council of States of the Indian Parliament (the Rajya Sabha, or the Upper House) on August 13, 2013. It awaits approval of the House of the People of the Indian Parliament (Lok Sabha, or the Lower House) and presidential assent before it is enforced and the provisions are incorporated in the Act. The Bill has been introduced mainly to address shortfalls that were noticed during implementation of the Act and to review the provisions relating to OCIs.

The Bill proposes the following changes:

  • The Bill replaces the words “overseas citizen of India” with the words “overseas Indian cardholder” (OIC). An overseas Indian cardholder is defined as a person registered as an overseas Indian cardholder by the central government under section 7A.
  • The Bill enlarges the categories of persons eligible for OIC. It proposes to include (i) a great-grandchild of any person who was a citizen of India; (ii) a minor child of parents, both of whom are, or one of whom is, a citizen of India; and (iii) a spouse of an Indian citizen who has been married for at least two years before making the application for registration.
  • The Bill also sought an amendment to bring within the scope of citizenship a person “who is ordinarily a resident” instead of the person who has been residing in India for a specific period
  • The registration of the spouse of an Indian citizen will be canceled if (i) the marriage has been dissolved by a competent court; or (ii) during the subsistence of such marriage, the spouse has married any other person.
  • If a person renounces his or her overseas Indian card, his or her spouse and minor child will also cease to be an OIC.
  • The central government may relax the requirement of being a resident in India for 12 months as one of the qualifications for a certificate of naturalization. This period cannot be extended beyond a period of 30 days.

There is no certainty regarding the time frame within which the Bill will be brought into force. Although the purpose of the amendment seems to be to correct the lacunae in the Act, it has, in a way, demoted the status of an OCI from being an overseas “citizen” to a mere cardholder. Although an OCI has never had full privileges of Indian citizenship, such as the right to vote, when the law was initially passed, OCI status was thought to be a first step toward dual citizenship. Further, by bringing the spouse and the minor child within the ambit of an OIC and by making registration for them compulsory, the whole purpose of easy and fast implementation of the OCI process is defeated.

News from the Alliance of Business Immigration Lawyers Vol. 9, No. 11B • November 15, 2013

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Headlines:

1. Infosys Settles Visa Fraud and Abuse Case for Record $34 Million – Infosys has agreed to pay a record $34 million civil settlement based on allegations of systemic visa fraud and abuse of immigration processes. The company also has agreed to enhanced corporate compliance measures.

2. Office of Foreign Labor Certification Deals With Backlogs After Shutdown – OFLC has implemented temporary changes to deal with backlogs resulting from the recent federal government shutdown.

3. Visa Office Forecasts Changes in Some Employment Cut-Off Dates – The Department of State’s Visa Office has projected changes in some employment cut-off dates.

4. OCAHO Substantially Reduces Penalties for Two Small Businesses; Fact Sheet Updated – OCAHO reduced I-9-related penalties substantially for two small restaurants. Also, the EOIR updated its fact sheet on OCAHO.

5. State Dept. Updates Visa Reciprocity Tables – Among other things, the Department recently updated the document section for Somalia.

6. USCIS Extends TPS for Somalis – Current Somali beneficiaries seeking to extend their TPS status must re-register by December 31, 2013.

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

8. Member News – Member News

9. Government Agency Links – Government Agency Links

Details:

1. Infosys Settles Visa Fraud and Abuse Case for Record $34 Million

Infosys Limited, an Indian company involved in consulting, technology and outsourcing, has agreed to pay a record $34 million civil settlement based on allegations of systemic visa fraud and abuse of immigration processes, and also agreed to enhanced corporate compliance measures. The $34 million payment made by Infosys as a result of these allegations represents the largest payment ever levied in an immigration case, U.S. Immigration and Customs Enforcement (ICE) announced.

ICE noted that Infosys is located in 30 countries and in 17 U.S. cities, including a location in Plano, Texas. The Plano location is responsible for handling the immigration practices and procedures for U.S. operations of Infosys. Infosys brings foreign nationals into the United States to perform work and fulfill contracts with its customers under two visa classification programs relevant to this case: H-1B and B-1.

ICE said that, among other things, Infosys fraudulently used B-1 visa holders to perform jobs involving skilled labor that were instead required to be performed by U.S. citizens or legitimate H-1B visa holders. ICE accused Infosys of directing B-1 visa holders to deceive U.S. consular officials, including a “do’s and don’ts” memorandum that instructed B-1 foreign nationals not to mention activities that “sound like work” or anything about contract rates. ICE also noted that Infosys failed to maintain I-9 records for many of its foreign nationals in the United States in 2010 and 2011, including failing to update and re-verify the employment authorization status of a large number of its foreign employees.

In addition to the $34 million payment, the settlement requires Infosys to conduct additional auditing for I-9 forms and meet a reporting requirement for B-1 usage, among other things.

David M . Marwell, special agent in charge of Homeland Security Investigations in Dallas, said: “This settlement against Infosys is the largest immigration fine on record. The investigation indicated that Infosys manipulated the visa process and circumvented the requirements, limitations, and governmental oversight of the visa programs. The investigation also showed that more than 80 percent of Infosys’s I-9 forms for 2010 and 2011 contained substantive violations. Ultimately, these actions by Infosys cost American jobs and simultaneously financially hurt companies that sought to follow the laws of this nation. Companies that misuse the visa process can expect to be scrutinized and held accountable.”

SETTLEMENT AGREEMENT

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2. Office of Foreign Labor Certification Deals With Backlogs After Shutdown

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has experienced backlogs as a result of the cessation of its electronic systems due to the recent federal government shutdown. OFLC noted that this further resulted in a backlog of documents submitted to OFLC during that period by mail, hand-delivery, or email. As a result, OFLC has implemented the following temporary changes:

1. Submissions mailed, couriered, or emailed to OFLC and received between October 1 and October 18:

Submissions are applications that the National Processing Centers (Chicago, Atlanta, or Prevailing Wage Center) could not receive electronically through the iCERT system during the shutdown, and were mailed, delivered by private courier (Federal Express, etc.) or emailed to OFLC. These include Applications for Permanent Employment Certification (PERM, ETA 9089), Applications for Temporary Employment Certification (H-2B, H-2A ETA 9142), and Applications for Prevailing Wage Determinations (ETA 9141).

Because of the backlog in submissions that were mailed, delivered or emailed to OFLC for shutdown-related reasons or otherwise, all submissions received by OFLC between October 1 and October 18 will be considered received on October 18. For example, a PERM application mailed to the Atlanta National Processing Center on October 5 will be given a receipt date of October 18, 2013. If an October 18 receipt date on an application would otherwise render out-of-date the recruitment or prevailing wage determination used for the application, the application will be deemed to have been timely filed for the purpose of the recruitment or the prevailing wage determination.

2. PERM and H-2B submissions with time-sensitive recruitment or prevailing wage determinations NOT mailed or delivered to OFLC during the shutdown:

Employers that decided not to mail or deliver PERM or H-2B submissions to OFLC because of the shutdown may now have recruitment or prevailing wage determinations that are out-of-date because of the shutdown-related delay. These employers may now mail or file electronically in PERM or iCERT (see note below about iCERT filing) submissions for receipt NO LATER THAN November 14, 2013. This accommodation applies only to PERM and H-2B applications that had timely recruitment or prevailing wage determinations during the shutdown period and are now unsuitable for filing due to expired recruitment or prevailing wage determinations. Employers with time-sensitive recruitment or prevailing wage determinations who delayed their filings until after October 18, 2013 will be deemed to have been timely filed for the purpose of the recruitment or the prevailing wage determination. For mailed submissions, please include a pink sheet of paper as a cover page for the submission and label that cover sheet as a “shutdown pre-empted submission” so that it is properly handled in our mailrooms.

Note for PERM and H-2B iCERT filers: PERM and H-2B applications with out-of-date recruitment or prevailing wage determinations may also be submitted electronically. The system will warn the user that the application contains information that will cause the application to be denied, but such an application will not be denied for this reason. As with PERM and H-2B submissions with out-of-date recruitment or prevailing wage determinations that are mailed, no application with expired recruitment or expired prevailing wage determinations will be accepted after November 14, 2013.

3. Employer responses to OFLC directives that were due between October 1 and October 18, 2013 but were NOT transmitted to OFLC:

In the H-2A, H-2B and PERM programs, some employers may have been directed by OFLC to respond by a deadline that occurred from October 1, 2013 to October 18, 2013. Responses that were due to the OFLC during this period but NOT transmitted will have their due dates extended to November 14, 2013. The deadline extension applies to the following documents in the following programs:

For Prevailing Wage Determinations:

  • Responses to Requests For Information

In H-2A and H-2B:

  • Responses to Notices of Deficiencies or Requests for Further Information
  • Audit Responses
  • Responses to Notices of Intent to Debar

In PERM:

  • Responses to information requests related to employer sponsorship
  • Audit/AAIR responses
  • Responses to Requests For Information
  • Responses to requests for review of advertisements in supervised recruitment
  • Responses to supervised recruitment (Recruitment Instructions Letters)
  • Responses to Notices of Intent to Revoke or to Debar

4. Employer responses to OFLC directives that were due between October 1 and October 18, 2013 and were transmitted to OFLC during that period:

Responses to OFLC directives in the H-2A, H-2B and PERM programs (those noted in no. 3 above) that were due between October 1 and October 18, 2013, and were transmitted via mail, hand-delivery or email during that time will be considered received on October 18 and timely.

If an applicant transmitted an application or response by mail, hand-delivery or email between October 1 and October 18, 2013, and the employer has not received notice that the transmission was undeliverable, the employer should NOT re-submit it.

Employers are reminded that if they view a PERM application as erroneously denied during this period based on out-of-date recruitment, they may submit the request for reconsideration to the attention of the government error queue.

None of the temporary procedures established in this notice apply to appeals to the BALCA. Employers are encouraged to contact the BALCA for information related to deadlines applicable to appeals.

NOTICE

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3. Visa Office Forecasts Changes in Some Employment Cut-Off Dates

The Department of State’s Visa Office has projected changes in some employment cut-off dates. The December 2013 Visa Bulletin notes that the India employment second and third preference category cut-off dates advanced very rapidly at the end of fiscal year 2013. Those movements were based on the availability of thousands of “otherwise unused” numbers that could be made available without regard to the preference per-country annual limits. This has resulted in a dramatic increase in applicant demand, the Visa Bulletin notes. Consequently, the Visa Office has retrogressed those cut-off dates for December “in an effort to hold number use within the numerical limits.”

In the coming months, the Visa Office expects the employment first preference category to remain Current, and the employment second preference worldwide category to remain Current. The employment second preference category for China is expected to move forward three to five weeks. No forward movement is expected in the India second preference category.

The worldwide employment third preference category cut-off date has advanced extremely rapidly during the past seven months “to generate new demand,” the Visa Bulletin states. As the rate of applicants whose cases are finalized increases, it could have a significant effect on the cut-off date. Rapid forward movement of this cut-off date “should not be expected to continue beyond February,” the Visa Bulletin notes.

China’s and Mexico’s employment third preference cut-off dates are expected to remain at the worldwide date. India should see no forward movement and the Philippines is expected to move forward three to six weeks.

The employment fourth and fifth preference cut-off dates are expected to remain Current. The Visa Office noted that these projections are “what is likely to happen during each of the next few months based on current applicant demand patterns.” However, the Visa Office cautioned that these trends are not guaranteed and corrective action could be required at some point to maintain number use within the applicable annual limits. Unless indicated, the Visa Office said that those categories with a Current projection in the December Visa Bulletin “will remain so for the foreseeable future.”

VISA BULLETIN FOR DECEMBER 2013

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4. OCAHO Substantially Reduces Penalties for Two Small Businesses; Fact Sheet Updated

In U.S. v. Red Bowl of Cary, LLC, the Executive Office for Immigration Review’s (EOIR) Office of the Chief Administrative Hearing Officer (OCAHO) reduced fines for Red Bowl of Cary, doing business as Red Bowl Asian Bistro in North Carolina, for Form I-9 violations. OCAHO also reduced fines for a small family business in a similar case, U.S. v. Kobe Sapporo Japanese, Inc. EOIR also recently updated its fact sheet on OCAHO.

Red Bowl case. U.S. Immigration and Customs Enforcement (ICE) investigated Red Bowl, which had 23 active employees, in 2011. The restaurant manager advised ICE that its I-9 employment authorization forms were filled out after ICE issued its Notice of Inspection and that he and Red Bowl’s president were unaware of the requirement to use the form. ICE sought penalties totaling $21,505. Red Bowl argued that the penalty was both inappropriate and excessive.

OCAHO noted that the minum penalty for paperwork violations is $110 and the maximum is $1,100. In assessing an appropriate penalty, OCAHO noted, the following factors are considered: (1) the size of the employer’s business, (2) the good faith of the employer, (3) the seriousness of the violations, (4) whether the individual was an unauthorized alien, and (5) the history of previous violations. OCAHO observed that the law neither requires that equal weight be given to each factor nor rules out consideration of additional factors.

Potential penalties for the 23 violations in this case ranged from $23,509 to $25,300, OCAHO noted. Instead of focusing on the completion of its I-9 forms, Red Bowl noted that it exercised reasonable care to refrain from hiring unauthorized aliens and had never done so. Red Bowl said that its conduct may have been negligent but that its violations were less serious than, for example, an intentional falsification of forms or a refusal to fill them out. Red Bowl argued that the fines were unduly punitive in light of a statutory analysis showing no aggravating factors. The restaurant noted that even in a worst-case scenario, where a large company willfully disregarded its obligations, falsified I-9 forms, employed unauthorized workers, and had a history of previous violations, the penalty would still be only $3,794.45 more than what the government sought here. Red Bowl also noted that the proposed penalty represented 16% of its income for the tax year 2011 and would create undue hardship. Red Bowl argued that a more appropriate penalty would be $110 for each violation, or a total of $2,530. The restaurant also requested a schedule permitting payment over a six-month period.

OCAHO noted that Red Bowl had not employed any unauthorized aliens and had no history of previous violations, so the only negative factor was the seriousness of the violations. OCAHO said that an employer’s failure to prepare a timely I-9 form for an employee is a serious violation because it may permit an unauthorized individual to maintain unlawful employment. OCAHO acknowledged that 16% of the restaurant’s income appeared excessive in light of the record, noting that a penalty “needs to be sufficiently meaningful to acocmplish the purpose of deterring future violations” but “should not be unduly punitive in light of the respondent’s resources.” OCAHO said that penalties very close to the maximum permissible “should be reserved for the most egregious violations,” noting a “general public policy of leniency toward small entities.” OCAHO adjusted the penalty amount to “an amount closer to the midrange,” for a total penalty of $10,350. OCAHO said that a payment schedule could be established “to minimize the impact of the penalty on the operations of the restaurant.”

Kobe Sapporo Japanese case. In a similar case, U.S. v. Kobe Sapporo Japanese, Inc., ICE alleged that the company, a small family-owned restaurant in North Carolina, failed to ensure that its 26 workers properly completed various sections of the I-9 form. The complaint sought penalties totaling $29,452.50. OCAHO noted that an employer’s financial health, the economy, the employer’s ability to pay the fine, and the potential effect of the fine on the company are all appropriate additional factors to be considered. Penalties are not intended to cause employees to lose their jobs or to force employers out of business, but rather to enhance the probability of future compliance, OCAHO said, reducing the total amount of the penalties to $15,400.

Both cases were decided on October 18, 2013.

RED BOWL DECISION

KOBE SAPPORO JAPANESE DECISION

Fact sheet updated. EOIR also updated its OCAHO fact sheet on October 1, 2013. The fact sheet explains what OCAHO does; the types of cases it hears; and how it receives cases related to employer sanctions, document fraud, and unfair immigration-related employment practices, including the typical steps in how a case proceeds.

OCAHO DECISIONS

FACT SHEET

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5. State Dept. Updates Visa Reciprocity Tables

The Department of State has updated the visa reciprocity tables. Among other things, the Department recently updated the document section for Somalia; updated police records information for Croatia; and added same-sex marriage certificate information for South Africa and Spain.

TABLES

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6. USCIS Extends TPS for Somalis

Acting Secretary of Homeland Security Rand Beers has extended temporary protected status (TPS) for eligible nationals of Somalia for an additional 18 months, effective March 18, 2014, through September 17, 2015.

Current Somali beneficiaries seeking to extend their TPS status must re-register during a 60-day period that began on November 1, 2013, and runs through December 31, 2013. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible. USCIS did not accept applications it received before November 1, 2013.

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Somali TPS beneficiaries who re-register during the re-registration period and request work authorization will receive a new EAD that expires on September 17, 2015.

To re-register, current TPS beneficiaries must submit Form I-821, Application for Temporary Protected Status. Re-registrants do not need to pay the I-821 application fee, but they must submit the biometric fee, or a fee-waiver request, if they are age 14 or older. All TPS re-registrants must also submit Form I-765, Application for Employment Authorization, but no I-765 application fee is required if the re-registrant does not want an EAD. TPS re-registrants requesting an EAD must submit the I-765 application fee, or a fee-waiver request.

Applicants may request that USCIS waive any or all fees based on inability to pay by filing Form I-912, Request for Fee Waiver, or by submitting a written request. Fee-waiver requests must be accompanied by supporting documentation. Failure to submit the required filing fees or a properly documented fee-waiver request will result in the rejection of the TPS application, USCIS noted.

ADDITIONAL INFORMATION ON TPS FOR SOMALIA

Further details on this extension of Somalia for TPS, including application requirements and procedures, are available in the FEDERAL REGISTER NOTICE.

A correction to the Federal Register notice amending the dates of the re-registration period was published HERE.

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7. New Publications and Items of Interest

SAVE video. The Systematic Alien Verification for Entitlements (SAVE) program has produced a short video to help applicants understand SAVE’s immigration status verification process. The video explains how SAVE functions to help many local, state, and federal government agencies verify immigration status. It shows steps applicants can take to help ensure that the SAVE verification process goes smoothly and reviews SAVE’s new service for benefit applicants, SAVE Case Check. SAVE suggests that user agencies and other stakeholders play the video in their waiting rooms and common areas so that benefit applicants can view it, and consider adding the link to websites. The five-minute video is available for download HERE.

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 Nicole.hahn@lexisnexis.com.

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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8. Member News

Steve Clark addressed the Massachusetts Bar Association on November 14, 2013, on EB-5: The Nuts and Bolts of an EB-5 Case.

H. Ronald Klasko wrote “Perspectives on the China Market: Part 2”

Charles Kuck has published a new blog entry. “Believing and Being an Immigration Lawyer” “Why Is My DACA Case Pending So Long?”

Mr. Kuck was a finalist for the Distinguished Service Award given by the Georgia Restaurant Association.

Gunther Mävers will speak at the 6th Biennial Global Immigration Conference, to be held November 20-22, 2013, at the May Fair Hotel in London, England. The conference is presented by the International Bar Association’s Immigration and Nationality Law Committee.

Cyrus Mehta has published a new blog entry. “The Ambiguous B-1 Visa: Lessons Learned From the Infosys Settlement

Angelo Paparelli has authored or co-authored several new blog entries. “Four Post-Infosys Strategies for Corporate Customers and Consultants To Minimize Immigration Risks” “Immigration Voices: ‘Visa Now Needed for U.S. Citizens To Enter the Beltway?’ ”

Bernard Wolfsdorf will speak on U.S. Investor and Entrepreneur Programs on Thursday, November 21, 2013, at the Global Residence and Citizenship Conference at the Shangri-La Oriental Hotel in Miami, Florida.

Mr. Wolfsdorf will host a free webinar on EB-5 Hot Topics on November 19, 2013. MORE INFORMATION OR TO REGISTER.

Stephen Yale-Loehr co-wrote “A Cumulative Analysis of What USCIS Looks For in EB-5 I-829 RFEs and Denials”

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9. 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. 11A • November 01, 2013

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Headlines:

1. Federal Government Reopens; OFLC, USCIS Announce Temporary Accommodation for I-129 H-2A Petitions – The Department of Labor’s Office of Foreign Labor Certification and USCIS announced temporary accommodation for I-129 H-2A petitions.

2. EOIR Updates Guidance on Immigration Court Filings After Government Shutdown, Changes Zip Code – EOIR issued details about immigration court filings in the wake of the government shutdown, and announced a change in zip code.

3. E-Verify Issues Guidance for Employers on Technical Glitch Related to Documentation – On October 22, 2013, E-Verify experienced some technical issues, and has issued related guidance.

4. USCIS Clarifies Eligibility Requirements for 17-Month Extension of Post-Completion OPT for F-1 STEM Students – F-1 students engaging in post-completion OPT are eligible for a 17-month STEM extension even if they have not yet completed the thesis requirement or equivalent for their STEM degree.

5. ABIL Global: Schengen Area – A new European regulation clarifies the calculation of the authorized length of short-term stays in the European Union (new “90-day rule,”) and amends other rules.

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

7. Member News – Member News

8. Government Agency Links – Government Agency Links

Details:

1. Federal Government Reopens; OFLC, USCIS Announce Temporary Accommodation for I-129 H-2A Petitions

The Department of Labor’s Office of Foreign Labor Certification issued the following announcement on October 23, 2013:

With the reopening of the federal government, USCIS has been informed that the Department of Labor’s (DOL) Office of Foreign Labor Certification is once again accepting and processing applications, including Temporary Labor Certifications (TLCs).

On Oct. 21, 2013, DOL issued an announcement to H-2A stakeholders stating that once the TLC is certified, the Chicago National Processing Center will send an email to the employer and its authorized representative containing an Adobe PDF of the labor certification. The employer would need to print, sign and date the PDF version for submission to USCIS with the Form I-129, Petition for Nonimmigrant Worker.

USCIS usually requires that a petitioner submit the certified TLC on blue security paper with original signatures. Beginning October 23, 2013, USCIS in consultation with DOL has determined that USCIS will temporarily accept Form I-129 H-2A petitions that are filed with a copy of the certified TLC. During this temporary accommodation, the signatures on the TLC submitted to USCIS do not need to be original. This temporary accommodation is being implemented because of the unique time sensitivities associated with agricultural work.

H-2A petitioners must submit the original Form I-129 petition, all required fees, and supporting documentation with a copy of the signed, certified TLC. DOL has indicated that this accommodation should last no longer than 30 days. USCIS will provide further guidance on when this accommodation will expire. At that time, H-2A petitioners will once again be required to submit the signed original of the certified TLC with their H-2A petition.

NOTICE

USCIS RELATED NOTICE

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2. EOIR Updates Guidance on Immigration Court Filings After Government Shutdown, Changes Zip Code

The Department of Justice’s Executive Office for Immigration Review (EOIR) issued updated guidance on October 25, 2013, about immigration court filings following the U.S. government shutdown. The guidance notes that during the government shutdown (October 1-16, 2013), EOIR was operating in a limited capacity. Immigration courts nationwide continued to adjudicate “detained” cases but all other functions were suspended.

The guidance notes that any filing with the immigration court related to a “non-detained” case that was due October 1-16, 2013, will be considered timely filed if it is received by the appropriate court by November 8, 2013. No request for, or documentation supporting, an extension is required if the appropriate court receives the originally due filing before the close of business on November 8. EOIR said it will issue new notices of hearing for cases affected by the lapse in government funding. Cases will be scheduled for available dates on the docket, but will not be scheduled in a way “that would cause disruption to previously scheduled cases.”

EOIR also noted that the Board of Immigration Appeals (BIA) processed only filings related to detained cases during the lapse in government funding. The BIA accepted all filings during that period. Also, EOIR transitioned to zip code 20530 on October 1, 2013. Due to the convergence of those two events, the BIA said it will consider timely filed any filing that meets both of these criteria:

(1) the filing was due during the month of October 2013; and
(2) the BIA received the filing on or before November 1, 2013.

No request for, or documentation supporting, an extension is required for filings that arrive at the BIA by November 1, 2013. Filings that arrive after November 1, 2013, will be subject to normal filing deadlines. If timeliness is an issue for any filings that the BIA receives after November 1, 2013, the BIA recommends consulting the BIA Practice Manual.

EOIR said that the Office of the Chief Administrative Hearing Officer (OCAHO) maintained its ability to issue subpoenas and accept complaints required to be filed by statutory deadlines. OCAHO granted all requests for extensions of time or temporary stays of proceedings made during that period, and accepted all filings received. Future requests for extensions or stays will be decided on a case-by-case basis, EOIR said.

NOTICE

EOIR’s SEPTEMBER ZIP CODE CHANGE ANNOUNCEMENT

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3. E-Verify Issues Guidance for Employers on Technical Glitch Related to Documentation

U.S. Citizenship and Immigration Services disseminated an alert on October 24, 2013, noting that on October 22, 2013, E-Verify experienced some technical issues that now have been resolved. As a result, employees who provided U.S. Passports or Passport Cards were erroneously receiving Tentative Nonconfirmations. USCIS’s instruction only applies to cases created on October 22, 2013, for employees who provided a U.S. Passport or Passport Card. It does not apply to other employees who provided other acceptable document(s) from the List of Acceptable Documents. USCIS sent the following guidance to E-Verify users:

If you created a case for an employee who provided a U.S. Passport or Passport Card and received a Tentative Nonconfirmation, close the case as “Invalid because the data entered is incorrect.” You should then create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9.

Additionally, if you were unable to create a case, you should now create a new case for the employee using the same U.S. Passport or Passport Card information provided for Form I-9. If you created the new case on the same day as the technical issue (October 22, 2013), you must close that case as “Invalid because the data entered is incorrect” and create a new case.

If you are prompted to select or enter the reason why the case was not submitted within 3 business days of hire please select “Technical Problems” from the drop-down menu.

You must NOT ask the employee to provide a different document if the document(s) they provided, including the U.S. Passport or Passport Card, appear to be genuine and relate to the individual presenting it. You must NOT request that employees produce more documents than are required by Form I-9 to establish your employee’s identity and employment authorization. Requiring that your employee present new or different documentation could be considered document abuse and is prohibited under the Immigration and Nationality Act.

We apologize for any inconvenience this may have caused. If you have any additional questions, please feel free to contact E-Verify at 888-464-4218. Customer service representatives are available Monday – Friday 8 AM – 5PM local time. You may also e-mail E-Verify at E-Verify@dhs.gov.

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4. USCIS Clarifies Eligibility Requirements for 17-Month Extension of Post-Completion OPT for F-1 STEM Students

On October 21, 2013, U.S. Citizenship and Immigration Services (USCIS) clarified eligibility requirements for a 17-month extension of post-completion optional practical training (OPT) for F-1 students enrolled in STEM (science, technology, engineering, and mathematics) programs.

USCIS said the issue is whether F-1 students engaging in post-completion OPT under 8 CFR § 214.2(f)(10)(ii)(A) are eligible for the 17-month STEM extension under 8 CFR § 214.2(f)(10)(ii)(C) if they have not yet completed their thesis requirement or equivalent for their STEM degree when applying for the STEM extension. USCIS said that F-1 students engaging in post-completion OPT are eligible for a 17-month STEM extension even if they have not yet completed the thesis requirement or equivalent for their STEM degree.

USCIS explained that to be eligible for post-completion OPT under 8 CFR § 214.2(f)(10)(ii)(A), F-1 students must have completed their course of study, or, for students in a bachelor’s, master’s, or doctoral degree program, the students must have completed all course requirements for their degree, excluding any applicable thesis requirement or equivalent.

USCIS said that with a narrow reading of 8 CFR § 214.2(f)(10)(ii)(C)(1) and (2), one might conclude that F-1 students who have been granted post-completion OPT under 8 CFR § 214.2(f)(10)(ii)(A) must have completed all course requirements for their STEM degrees, including any applicable thesis requirement or equivalent, to be eligible for the 17-month STEM extension (i.e., only after “earning a STEM degree”). However, 8 CFR § 214.2(f)(10)(ii)(C)(1) and (2) cannot be read in isolation, USCIS said; they must be read in conjunction with 8 CFR § 214.2(f)(10)(ii)(A)(3), which states that students need not necessarily have completed their thesis requirement or equivalent to be eligible for post-completion OPT. Because the 17-month STEM extension is merely an extension of a previously granted period of post-completion OPT, USCIS concluded that students who are applying for the STEM extension need not necessarily have completed their STEM degree thesis requirement or equivalent to be eligible for the extension. Such a reading “is made even more compelling from a policy perspective, given the nation’s interest in attracting and retaining the world’s best and brightest individuals,” USCIS said. Moreover, USCIS noted, such a reading is consistent with the position taken by the Student and Exchange Visitor Program (SEVP) in policy guidance on this specific issue.

Additional details are available in USCIS’s GUIDANCE.

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5. ABIL Global: Schengen Area

A new European regulation clarifies the calculation of the authorized length of short-term stays in the European Union (new “90-day rule,”) and amends other rules.

Short-term stay is defined by European Union (EU) legislation as residence up to “three months during the six months following the date of first entry.” This wording has led to interpretation problems.

A recent European Regulation of June 26, 2013 (hereafter “Regulation 610/2013”) amended the Schengen Borders Code and the Schengen Agreement by replacing the reference to “three months during the six months following the date of first entry” by “90 days in any 180-day period.” The aim of the new wording is to install “clear, simple and harmonized rules” with regard to the “calculation of the authorized length of short-term stays in the [EU].”

One of the amended articles is article 5, para. 1, introductory part, of the Schengen Borders Code. In this same article a new para. 1a is inserted:

1. For intended stays on the territory of the Member States of a duration of no more than 90 days in any 180-day period, which entails considering the 180-day period preceding each day of stay, the entry conditions for third-country nationals shall be the following:

….

1a. For the purposes of implementing paragraph 1, the date of entry shall be considered as the first day of stay on the territory of the Member States and the date of exit shall be considered as the last day of stay on the territory of the Member States. Periods of stay authorized under a residence permit or a long-stay visa shall not be taken into account in the calculation of the duration of stay on the territory of the Member States.” (Emphasis added.)

All amended articles with regard to the new 90-day rule took effect on October 18, 2013.
Regulation 610/2013 has also amended other rules, already effective as of July 19, 2013. One of these rules is article 5, para. 1(a) of the Schengen Borders Code, pursuant to which the short-term stay entry conditions relating to a valid travel document have been modified. Under the new rules, the required valid travel document not only must entitle the holder to cross the border, but also must (i) be valid “at least three months after the intended date of departure from the territory of the Member States” (this requirement may be waived in “a justified case of emergency”) and (ii) “have been issued within the previous 10 years.”

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6. New Publications and Items of Interest

I-9 inspection overview. U.S. Immigration and Customs Enforcement (ICE) released a fact sheet, “Form I-9 Inspection Overview.” The fact sheet includes procedures ICE follows when conducting an I-9 inspection. The fact sheet notes, among other things, that monetary penalties for violations related to knowingly hiring and continuing to employ undocumented workers range from $375 to $16,000 per violation, with repeat offenders receiving penalties at the higher end. Penalties for substantive violations, which include failing to produce an I-9, range from $110 to $1,100 per violation. In determining penalty amounts, ICE considers five factors: the size of the business, whether there was a good faith effort to comply, the seriousness of the violation, whether the violation involved unauthorized workers, and any history of previous violations.

FACT SHEET

A related fact sheet, “Worksite Enforcement”

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 Nicole.hahn@lexisnexis.com.

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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7. Member News

Several ABIL firms were included in the 2014 U.S. News—Best Lawyers “Best Law Firms” rankings:

  • Ivener & Fullmer
  • Klasko, Rulon, Stock & Seltzer, LLP
  • Maggio + Kattar, P.C.
  • Wolfsdorf Immigration Law Group

H. Ronald Klasko recently spoke on “Options for Developers Seeking Capital under the EB-5 Program” for EB-5 Investment Report Magazine‘s educational Dialogue Series webcast. Mr. Klasko discussed what a regional center is and how to create one, and also explained different investment models, differences between individual EB-5 and regional center EB-5, the USCIS application process, and more.

Sharon Mehlman spoke on “Negotiating With ICE” on October 22, 2013, at the Federal Bar Worksite Enforcement Conference in Chicago, Illinois.

Cyrus Mehta spoke on “U.S. Immigration and Tax Rules For Global Professionals” at the North American South Asian Bar Association’s (NASABA) Tax & Immigration Webinar, October 24, 2013.

Mr. Mehta also spoke on “Immigration Reform and Ethics” at the Statewide Meeting of the New York State Association of Disciplinary Attorneys, New York Country Lawyers’ Association, in New York City on October 25, 2013.

Bernard Wolfsdorf will speak Wednesday, November 6, 2013, at the NAFSA Region XII Annual Conference on Visa Options for Entrepreneurial International Students in San Diego, California.

Mr. Wolfsdorf will speak on the Consular Update Panel on Thursday, November 7, 2013, at the NAFSA Region XII Annual Conference in San Diego.

Stephen Yale-Loehr spoke on a panel discussing when F-1 foreign students can and cannot legally work off-campus at the NAFSA Region X conferenceon Wednesday, October 30, 2013, in Atlantic City, New Jersey.

Mr. Yale-Loehr was quoted in an article about a family’s long wait for a green card, on October 27, 2013, on Syracuse.com. He noted that it usually takes more than a year for an overseas spouse to immigrate to the United States because of background and income checks. “It’s very hard to expedite that process. Partly why we have illegal immigration is because it’s so hard to immigrate legally.”

Mr. Yale-Loehr was quoted in an article about a record fine being imposed against an Indian company for visa violations. “This complaint and large settlement should be a wake-up call to all employers that the government is serious about enforcing the H-1B visa regulations,” he said. The article was published in the Wall Street Journal on October 29, 2013 and in the Wall Street Journal‘s MarketWatch on the same day.

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8. 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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