GERMANY: Germany has Become the World’s Top Migration Spot after the United States

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According to recently published OECD statistics from 2012, Germany has seen significant growth in migration and has skyrocketed to second place on the list of the world’s top migration spots after the United States:

Germany became the second-largest immigration country, after the United States, in the OECD in 2012, receiving more than 10% of all permanent immigration to the OECD area. In 2009, it was only the eighth largest. This spectacular increase has been fueled mainly by inflows from central and eastern European countries and, to a lesser degree, southern Europe.

Based on official statistics published by Germany’s Federal Statistic Office for 2013, an additional 146,000 foreigners (a surplus of 13% in comparison to 2012) have migrated to Germany. The total number of foreign migrants for 2013 was 1,108,000. Since during the same period 649,000 foreigners have left the country, there is a significant migration surplus of 459,000 foreigners (387,000 in 2012). That is the highest growth to report since 1993.

The spike in migration to Germany is partly a result of the economies of southern European countries not doing well (e.g., Greece, Italy, Portugal, and to a lesser extent Spain), and others are also struggling to a certain extent (e.g., France, Netherlands), whereas Germany has a very strong economy despite the global economic crisis. Germany therefore is in a position to add a lot of fuel to the European Union engine to keep it running. The fact that Germany is attracting more foreigners is, however, mainly due to the stable political situation and the reliable legal system that together create an environment that seems friendly to investors and new arrivals. With regard to the latter, securing a “residence title for the purpose of gainful employment” (the official name of the work permit) is still highly regulated and complex. The conditions for establishing a business in Germany, for entering into business relationships by way of contracts with business partners and customers, and also for litigation, if needed, are generally seen as advantageous.

The mix of all these aspects makes migration to Germany even more attractive than it was over the last several years. There is nevertheless still room for improvement of the regulations that currently apply. For example, the fact that for many visa categories a local employment contract is a must poses as many problems as the requirement to have health insurance at least equivalent to German standards (which is difficult to prove when there is no local coverage). Moreover, processing times are still very slow, and lack of communication by some authorities remains an issue. Finally, some commentators argue in favor of access to a fast-track procedure and to special authorities or competence centers for corporate immigration.

Federal President Joachim Gauck has welcomed immigration to Germany by stressing that immigration is key to Germany, whereas Chancellor Angela Merkel has been making the point that Germany is not in favor of any misuse of the EU social union’s rights. This is, however, no contradiction because the issues do differ. President Gauck has been addressing the issue from a more general standpoint, such as in a speech on the 65th anniversary of the Federal Constitution, whereas Merkel has been commenting on the opinion of the Advocate General in preparing the upcoming decision of the European Court of Justice that any member state can limit the social rights of EU nationals that have not sought employment during their stay while receiving social welfare benefits after a period of 6 months. To a certain extent, her comment may also be influenced by elections on both the local and EU levels, so she may have been trying to entice some votes away from EU-skeptical right-wing parties (which have a lot of influence, notably in the United Kingdom and France). Despite all this, it appears that both of them are in favor overall of migration to Germany.

It will be interesting to see if in 2014 Germany can keep up this pace and continue or even increase migration to the country. Stay tuned.

DOS Beefs Up Consular Services in Brazil, Plans Two New Consulates

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The Department of State plans to open two new consulates in Belo Horizante and Porto Alegre, Brazil, which the White House said are important economic and cultural centers for the states of Minas Gerais and Rio Grande do Sul.

In remarks to the U.S.-Brazil Partnership for the 21st Century, Secretary of State Hillary Clinton said the openings are intended to “make it easier to get those visas, easier to travel, knock down some of the barriers that have been put up, and continue to promote people-to-people contact.” It was not clear from the official statements when the consulates would open, but reports suggested they may not begin operations until 2014.

To address immediate growth in demand, the Department of State is sending dozens of consular officers to Brazilian posts to adjudicate visa applications. Between August and December 2011, the Department sent 82 temporary duty officers to Brazil, who issued more than 135,000 visas to Brazilian travelers. The Department of State is doubling the number of diplomats performing consular work in Brazil over the next year.

The Department is also implementing a pilot program in which consular officers may waive in-person interviews for certain qualified individuals, such as those renewing their visas within 48 months of the expiration of their previous visas, and Brazilians below the age of 16 and those age 66 and older. Because security is paramount, consular officers may interview any visa applicant in any category. Nonetheless, the Department said that this program “will benefit thousands of Brazilians who want to visit the United States.”

According to a White House statement released on April 9, 2012, Brazil now ranks as the fourth largest source of overseas visitors, with 1.5 million visits to the United States in 2011, representing a 26 percent increase from 2010. Visa issuances to Brazilians tripled between 2006 and 2011, and are on pace for significant gains in 2012, the White House noted. As of February, visa processing was up 57 percent in 2012 from the same time frame in 2011. The Department of Commerce forecasted that 2.8 million Brazilians will travel to the United States in 2016, an increase of 87 percent from 2011. Visa interview wait times have dropped dramatically in Brazil, and now average just two weeks or less in Brasilia, Recife, and Rio de Janeiro, and 35 days or fewer in Sao Paulo.

Secretary Clinton’s remarks

The White House Statement

Related Fact Sheet

AUSTRALIA: Australian Government Revised Labour Market Testing in the 457 Program

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In June 2013, the previous government of Australia decided to undo decades of progressive reform and introduce Labour Market Testing (LMT) into the 457 program. That government was defeated in September 2013 and the new government has substantially watered down the LMT regime with amendments passed on November 23.

The subclass 457 visa is the most commonly used visa to sponsor overseas skilled workers on a temporary basis to work in Australia. Subclass 457 is uncapped and driven by employer demand. This generally means that employers will sponsor overseas workers more in times of high economic growth and low unemployment.

An application for approval of sponsorship must be accompanied by evidence in relation to LMT, unless the employer is exempt from doing so. Legislation specifies the manner in which such testing is to be carried out as well as the period in which LMT must have been undertaken. It also sets requirements relating to the sponsor’s attempts to recruit local labor. However, the November amendments provide for substantial exemptions from the LMT requirements.

The first such exemption provides that LMT is not required if it would be inconsistent with Australia’s international trade obligations, which fall into two categories:

  • World Trade Organization General Agreement on Trade in Services (WTO-GATS) commitments
  • Free trade agreement commitments

Consequently, sponsorship of citizens from WTO member countries would not require LMT. Similarly, intra-company transferees to Australia from a business established in a WTO country are exempt from LMT.

In addition to exemptions based on international trade agreements, sponsorship of executives and senior managers are exempt, as are specialists with two years of employment in Australia. Sponsors are also exempt from LMT for employees in positions that require tertiary qualifications. However, certain occupations cannot be exempted. The current list of occupations in that category includes a range of highly qualified engineers and nurses.

Finally, a sponsor may be exempt from LMT in the case of major disaster in Australia.

FACT SHEET ON THE 457 VISA

AUSTRALIA: Australian Government Revised Labour Market Testing in the 457 Program

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n June 2013, the previous government of Australia decided to undo decades of progressive reform and introduce Labour Market Testing (LMT) into the 457 program. That government was defeated in September 2013 and the new government has substantially watered down the LMT regime with amendments passed on November 23.

The subclass 457 visa is the most commonly used visa to sponsor overseas skilled workers on a temporary basis to work in Australia. Subclass 457 is uncapped and driven by employer demand. This generally means that employers will sponsor overseas workers more in times of high economic growth and low unemployment.

An application for approval of sponsorship must be accompanied by evidence in relation to LMT, unless the employer is exempt from doing so. Legislation specifies the manner in which such testing is to be carried out as well as the period in which LMT must have been undertaken. It also sets requirements relating to the sponsor’s attempts to recruit local labor. However, the November amendments provide for substantial exemptions from the LMT requirements.

The first such exemption provides that LMT is not required if it would be inconsistent with Australia’s international trade obligations, which fall into two categories:

  • World Trade Organization General Agreement on Trade in Services (WTO-GATS) commitments
  • Free trade agreement commitments

Consequently, sponsorship of citizens from WTO member countries would not require LMT. Similarly, intra-company transferees to Australia from a business established in a WTO country are exempt from LMT.

In addition to exemptions based on international trade agreements, sponsorship of executives and senior managers are exempt, as are specialists with two years of employment in Australia. Sponsors are also exempt from LMT for employees in positions that require tertiary qualifications. However, certain occupations cannot be exempted. The current list of occupations in that category includes a range of highly qualified engineers and nurses.

Finally, a sponsor may be exempt from LMT in the case of major disaster in Australia.

FACT SHEET ON THE 457 VISA

News from the Alliance of Business Immigration Lawyers Vol. 9, No. 12B • December 15, 2013

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Headlines:

1. Supreme Court Hears Oral Argument in CSPA Case; USCIS Issues Policy Guidance – The memo addresses automatic conversion and priority date retention for certain children of immigrant visa petitioners.

2. Court Approves Final Settlement on Employment Authorization for Asylum Seekers – The settlement agreement provides that certain individuals who intend to file, or have already filed, an asylum application may have their eligibility for employment authorization determined using new procedures.

3. USCIS Releases New E-Verify MOUs Tied to Access Method – Current E-Verify users are not required to execute a new MOU but are bound by the new or revised MOU that applies to their access method.

4. USCIS Revises Mandatory Posters for E-Verify and Right-to-Work in Response to Crowdsourced Feedback – The posters now require less ink to print, in response to requests posted on USCIS’s public feedback site. The previous versions are still acceptable.

5. U.S. Embassy London Hosts Visa Webchat – Presenters noted, among other things, that applicants having a “criminal caution” may experience lengthy delays during the application process.

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. Supreme Court Hears Oral Argument in CSPA Case; USCIS Issues Policy Guidance

The Supreme Court heard oral argument in Mayorkas v. Cuellar de Osorio on December 10, 2013. The case challenges a Board of Immigration Appeals (BIA) interpretation of the Child Status Protection Act (CSPA) with respect to children aging out before a visa becomes available. The CSPA provides continuing eligibility for immigration benefits to the beneficiaries of certain petitions when the beneficiary has “aged out” by turning 21. U.S. Citizenship and Immigration Services (USCIS) issued related policy guidance just before the Supreme Court argument.

Highlights of the argument and the guidance follow.

Supreme Court case. Mayorkas v. de Osorio questions whether all children of immigrant visa applicants, or only some, who turn 21 while awaiting a visa may retain their original priority date or must wait at the back of a new visa line. The case arose in the context of a family-based green card petition, but the Court’s decision will also affect beneficiaries of employment-based green card petitions.

In Matter of Wang, the relevant BIA case, the Board held that the automatic conversion and priority date retention provisions of the CSPA did not apply to a person who aged out of eligibility for an immigrant visa as the derivative beneficiary of a family-based fourth preference visa petition, and on whose behalf a second preference green card petition was later filed by a different petitioner.

The petitioner urged a broad interpretation of the CSPA. The brief by amici curiae in Wang similarly maintained that the provision amended by the CSPA, § 203(h)(3) of the Immigration and Nationality Act (INA), is ameliorative and inclusive and does not limit its automatic conversion and priority date retention provisions to family-based preference petitions. In contrast, the USCIS urged a narrower interpretation, arguing that established regulatory practice requires that the original priority date will be retained only if the second visa petition is filed by the same petitioner. Thus, USCIS maintained that to effect an “automatic conversion” under the CSPA, the petitioner also must have been the petitioner on the earlier green card petition. According to the USCIS, such an interpretation of the statute avoids open-ended petitions with no timeliness considerations.

The Supreme Court’s decision is expected by late June.

USCIS policy guidance. Shortly before the Supreme Court argument in Mayorkas v. Cuellar de Osorio, USCIS issued a policy guidance memorandum on the CSPA.

The memo notes that the CSPA addresses certain “age out” consequences in those instances where “aging out” of eligibility for classification as a child is caused by a delay in the adjudication of the petition or application. The CSPA applies widely to petitions for family-based immigrants and also applies to employment-based immigrants, diversity visa immigrants, refugees, and asylees when delays in processing petitions would cause a beneficiary to lose the ability to immigrate as a child due to reaching 21 years of age.

The memo specifically addresses automatic conversion and priority date retention as set forth in INA § 203(h)(3). The memo notes that this provision authorizes certain immigrant visa petitions to “automatically be converted to the appropriate category and…retain the original priority date.” The memo provides guidance for assigning priority dates in those instances where a petitioner requests that the priority date from a separate, previously filed petition be applied to a later filed family-based second-preference “B” petition (F-2B) or seeks adjustment of status in the F-2B category, based upon an originally filed family-based second-preference “A” petition (F-2A) under the CSPA.

The guidance quotes the following related update to the USCIS Adjudicator’s Field Manual for officers considering eligibility for priority date retention:

“(A) If the beneficiary was previously found eligible as a derivative on an approvable F2A category petition (“petition #1”) that has not been revoked or otherwise terminated, and the subsequent petition (“petition #2”) was filed by the same petitioner as in petition #1, USCIS will apply the earlier priority date to petition #2 (regardless of whether the second petition is initially filed in the F-2B or F1 classification).

(B) If the beneficiary was previously the subject of an approved F-2A petition and that petition has not been revoked or otherwise terminated, any subsequent petition filed by the same petitioner, which is approved by USCIS shall be entitled to the older priority date and approval of the new petition shall be considered a reaffirmation of the previous approval, as provided in 8 CFR § 204.2(h)(2).

(C) If the principal beneficiary of an F-2B petition (petition #2) was previously the derivative beneficiary of a petition filed pursuant to sections 203(a)(1), (3), (4), or 203(b), and the petitioner of petition #2 was not the petitioner on the previous petition (petition #1), then petition #2 is NOT entitled to the older priority date. See 8 CFR § 204.1(b); 22 CFR § 42.53(a). Instead, petition #2 should be assigned a priority date based on the date of filing. Send the standard notice of denial of priority date retention provided through the appropriate chain of command. Continue to otherwise adjudicate the petition on its merits in accordance with applicable law, regulations, and policies.

(D) If an individual files an application for adjustment of status in the F-2B or F-1 classification based on previous F-2A derivative classification, but the petitioner did not file a new (subsequent) petition on behalf of the individual, the individual may be eligible for adjustment of status if:

(i) he or she was previously the derivative beneficiary of an approvable F-2A petition;

(ii) he or she qualifies as the son or daughter of the original petitioner (take particular care that step-relationships were created before the applicant turned 18); and

(iii) all other eligibility requirements are met.

(E) If an application for adjustment of status is pending and eligibility is solely contingent upon a request for priority date retention for which he or she is not eligible, hold the application pending the U.S. Supreme Court’s ruling on Mayorkas v. Cuellar de Osorio and applicable guidance issued pursuant to that ruling. If, however, the applicant has another basis of eligibility for adjustment, adjudication based on the alternate basis of eligibility should not be delayed.

(F) If a denied applicant for adjustment of status files a motion to reopen or reconsider, or if such a motion is pending, and eligibility is solely contingent upon a request for priority date retention for which he or she is not eligible, hold the motion pending the U.S. Supreme Court’s ruling on Mayorkas v. Cuellar de Osorio and applicable guidance issued pursuant to that ruling. If the applicant demonstrates another basis of eligibility for adjustment that was not properly considered before denial, the application should be reopened and adjudication based on the alternate basis of eligibility should not be delayed.”

Matter of Wang

Links to various related filings in Mayorkas v. de Osorio are available HERE and HERE

USCIS POLICY GUIDANCE MEMO, which includes example scenarios

MORE CSPA INFORMATION

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2. Court Approves Final Settlement on Employment Authorization for Asylum Seekers

U.S. Citizenship and Immigration Services announced that on November 4, 2013, the U.S. District Court for the Western District of Washington granted final approval of the revised ABT settlement agreement, closing class action litigation that began in December 2011, in a case called B.H. v. United States Citizenship and Immigration Services, No. CV11-2108-RAJ (W.D. Wash.). The settlement agreement provides that certain individuals who intend to file, or have already filed, an asylum application may have their eligibility for employment authorization determined using new procedures.

These changes generally relate to eligibility for an Employment Authorization Document (EAD) for asylum applicants, and to calculation of the 180-day “Asylum EAD Clock” for ABT class members.

USCIS explained that the 180-day Asylum EAD Clock measures the time period during which an asylum application has been pending with the USCIS asylum office and/or the Executive Office for Immigration Review. USCIS service centers adjudicate the Form I-765, Application for Employment Authorization, and calculate the 180-day Asylum EAD Clock to determine eligibility for employment authorization. Asylum applicants who applied for asylum on or after January 4, 1995, must wait 150 days before they can file an I-765 if the application remains pending. An asylum applicant cannot receive an EAD until his or her asylum application has been pending for at least 180 days. This 180-day period does not include any delays that applicants request or cause while their applications are pending with an asylum office or immigration court, USCIS explained.

The agreement was revised in September 2013 to clarify two points:

1. Following the remand of an asylum case to an immigration judge, for employment eligibility purposes the asylum applicant will be credited with time going forward, excluding delays requested or caused by the applicant.

2. Remand Claim relief would be implemented under the six-month time frame provided in most other provisions of the agreement. Due to the government shutdown, the six-month time frame was extended by several weeks and implementation began by December 3, 2013.

EXPLANATION of how to determine who is an ABT class member

U.S. CITIZENSHIP AND IMMIGRATION SERVICES’ ANNOUNCEMENT

ADDITIONAL INFORMATION

RELATED NOTICE

DETAILS on how the agreement affects adjudication of asylum and EAD applications

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3. USCIS Releases New E-Verify MOUs Tied to Access Method

On December 8, 2013, U.S. Citizenship and Immigration Services (USCIS) released revised Memoranda of Understanding (MOUs) for E-Verify browser users and new MOUs for users accessing E-Verify through Web services.

USCIS said that current E-Verify users are not required to execute a new MOU but are bound by any enhancements to the E-Verify program, including the new or revised MOU that applies to their access method. Current users should become familiar with the new or revised MOU that applies to their access method. The effective date of the MOU for existing users is January 8, 2014.

Employers who join the E-Verify program on or after December 8, 2013, will execute a new or revised MOU (Revision Date 06/01/2013) during enrollment. E-Verify revised and added new MOUs in response to feedback and to update the MOUs with policy and process changes. The new and revised MOUs include several updated provisions, such as enhanced privacy protections and instructions for reporting privacy and security breaches. The new versions are also intended to apply the Federal Government’s “plain language” principles to make them easier to understand.

The E-Verify MOUs released on December 8, 2013, have a revision date of June 1, 2013. The revision date may be found at the bottom of each MOU page.

ANNOUNCEMENT

NEW MEMORANDA

RELATED FACT SHEET

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4. USCIS Revises Mandatory Posters for E-Verify and Right-to-Work in Response to Crowdsourced Feedback

U.S. Citizenship and Immigration Services (USCIS) has revised the posters that employers must display in their places of business. USCIS said the posters now require less ink to print, in response to requests on “E-Verify Listens,” USCIS’s crowdsourced feedback site. The previous versions are still acceptable.

NEW POSTERS, available in English and Spanish

E-VERIFY LISTENS

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5. U.S. Embassy London Hosts Visa Webchat

The U.S. Embassy in London conducted a webchat on November 26, 2013. Highlights of the webchat include:

  1. U.S. government policy is under review regarding “criminal cautions” in the United Kingdom. Applicants having a caution may experience lengthy delays during the application process. These delays will affect applicants with a caution even if they may have received a visa in the past. The U.S. Embassy London recommends applying as soon as possible and not making final travel plans until receiving a visa.
  2. Visa applicants are advised to notify the embassy via a contact form if they leave the United Kingdom while additional processing is pending. CONTACT FORM
  3. The embassy noted that the presumption of innocence has little place in the visa application process. According to the embassy, if one applies for a visa during a pending prosecution, “you should be aware that it may not be possible to adjudicate your visa application until the disposition of your criminal case is known.” See 9 FAM 40.21(a) N3.3.
  4. Waiver applications take six months to process even if the applicant has received a previous waiver. Frequent travelers to the United States may choose to apply more than six months before the expiration date of their current visa so that the next visa may be ready to be issued without a gap. A current visa with a valid waiver will not be canceled during the interview before the expiration date.
  5. Immigrant visas are issued with a validity period that expires six months from the date of the medical exam, rather than six months from the date of the immigrant visa interview.

TRANSCRIPT OF THE WEBCHAT

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6. New Publications and Items of Interest

Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

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

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

This comprehensive guide is designed to be used by:

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

This publication provides:

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

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

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

Mark Ivener has co-authored “Taxing Decisions: EB-5 Investor Visa and U.S. Tax Issues,” published in the Fall 2013 edition of The Practical Tax Lawyer. The article includes a Regional Center EB-5 Immigrant Investor Flowchart.

Charles Kuck received the Personajes Destacados del Año (Distinguished People of the Year) “Amigo de Los Hispanos” (“Friend of Hispanics”) Award from Mundo Hispanico.

Cyrus Mehta has authored or co-authored several new blog entries. “I Pledge Allegiance: The Naturalization Oath and Dual Citizenship” “Free the Children: Parent’s Abandonment of Green Card Should Not Be Imputed on Child”

Angelo Paparelli has authored a new blog entry. “Immigration Dreaming in California—Assembly Bill 263 Will Bring Nightmares to the State’s Employers”

Stephen Yale-Loehr co-authored “A Cumulative Analysis of What USCIS Looks For in EB-5 I-829 RFEs and Denials.” The article originally appeared in 3 IIUSA Regional Center Bus. J. 9 (Oct. 2013).

Mr. Yale-Loehr will be a panelist on a webinar sponsored by Invest In the USA (IIUSA), the trade association of EB-5 regional centers, on December 17, 2013, from 3 to 4 :30 pm eastern time. Mr. Yale-Loehr and other panelists will discuss the growth of the EB-5 industry in 2013 and the opportunities and challenges that lie ahead in 2014 for the industry. For more information or to sign up for the webinar, go HERE.

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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 pos

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News from the Alliance of Business Immigration Lawyers Vol. 9, No. 12A • December 01, 2013

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Headlines:

1. USCIS Announces E-Verify Anti-SSN Fraud Effort – USCIS has announced an E-Verify effort to combat identity fraud by identifying and deterring fraudulent use of Social Security Numbers for employment eligibility verification.

2. Temporary Accommodation for Form I-129 H-2A Petitions Has Expired – The Office of Foreign Labor Certification has stopped sending Adobe PDF copies of approved temporary labor certifications to H-2A employers and authorized representatives as of November 18, 2013.

3. USCIS Warns of Scams Exploiting EB-5 Immigrant Investor Program – In coordination with USCIS, which administers the EB-5 program, the SEC has taken emergency enforcement action to stop allegedly fraudulent securities offerings made through the EB-5 program.

4. USCIS Reminds Filipinos of Immigration Relief Measures Following Typhoon; US-CERT Warns About Scams – Following Typhoon Haiyan in the Philippines, USCIS is reminding Filipino nationals that they may be eligible for certain immigration relief measures if requested.

5. DHS Proposes SEVP Rule – Among other things, the proposed rule would grant school officials more flexibility in determining the number of designated school officials to nominate for the oversight of campuses.

6. USDA Postpones Release of 2014 AEWR Wage Data – The new release date for the Farm Labor Survey report is December 5, 2013.

7. DOL Publishes Three Final Rules Eliminating Obsolete OFLC Regulations – The Department of Labor has published three final rules eliminating Office of Foreign Labor Certification regulations that have been made obsolete by statutory or regulatory changes.

8. ABIL Global: Turkey – The new Residence Permit Law will overhaul immigration in Turkey.

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

10. Member News – Member News

11. Government Agency Links – Government Agency Links

Details:

1. USCIS Announces E-Verify Anti-SSN Fraud Effort

U.S. Citizenship and Immigration Services (USCIS) has announced an E-Verify effort to combat identity fraud by identifying and deterring fraudulent use of Social Security Numbers (SSNs) for employment eligibility verification.

USCIS explained that an employer, for example, may enter information into E-Verify that appears valid, such as a matching name, date of birth, and SSN, but that was in fact stolen, borrowed, or purchased from another individual. The agency said the new safeguard enables USCIS to lock an SSN that appears to have been misused.

USCIS said this implements standards that have proven effective in protecting individual identity in other industries. As with a credit card company that can lock a card that appears to have been stolen, USCIS may now lock SSNs in E-Verify that appear to have been used fraudulently. USCIS said it will use a combination of algorithms, detection reports, and analysis to identify patterns of fraudulent SSN use and then lock the number in E-Verify.

If an employee attempts to use a locked SSN, E-Verify will generate a “Tentative Nonconfirmation” (TNC). The employee receiving the TNC may contest the finding at a local Social Security Administration (SSA) field office. If an SSA field officer confirms that the employee’s identity correctly matches the SSN, the TNC will be converted to “Employment Authorized” status in E-Verify.

Employer enrollment in E-Verify has more than doubled since January 2009, with more than 470,000 participating employers representing more than 1.4 million hiring sites. Approximately 1,500 new employers enroll each week. In fiscal year (FY) 2013, E-Verify was used to authorize workers in the U.S. more than 25 million times, representing a nearly 20 percent increase from FY 2012.

ANNOUNCEMENT

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2. Temporary Accommodation for Form I-129 H-2A Petitions Has Expired

The Department of Labor’s Office of Foreign Labor Certification has announced that it has stopped sending Adobe PDF copies of approved temporary labor certifications (TLCs) to H-2A employers and authorized representatives as of November 18, 2013.

U.S. Citizenship and Immigration Services (USCIS) previously issued an alert allowing H-2A petitioners to temporarily file Form I-129, Petition for a Nonimmigrant Worker, with a copy of the signed, certified TLC. To align with the Department of Labor’s return to normal practice following the federal government shutdown, USCIS’s temporary accommodation expired on November 29, 2013. Beginning December 2, 2013, USCIS will revert to its previous filing practice and will not accept any I-129 H-2A petitions filed without the certified TLC on blue security paper with original signatures.

ANNOUNCEMENT

FREQUENTLY ASKED QUESTIONS about H-2A and H-2B signature requirements for electronically filed temporary labor certifications and the H classification supplement to the I-129

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3. USCIS Warns of Scams Exploiting EB-5 Immigrant Investor Program

The U.S. Securities and Exchange Commission’s (SEC) Office of Investor Education and Advocacy and U.S. Citizenship and Immigration Services have jointly issued a warning to individual investors about fraudulent investment scams that exploit the EB-5 immigrant investor program.

In coordination with USCIS, which administers the EB-5 program, the SEC has taken emergency enforcement action to stop allegedly fraudulent securities offerings made through the EB-5 program. USCIS explained that business owners apply to USCIS to be designated as “regional centers” for the EB-5 program. Regional centers offer investment opportunities in new commercial enterprises that may involve securities offerings. The fact that a business is designated as a regional center by USCIS does not mean that USCIS, the SEC, or any other government agency has approved the investments offered by the business, or has otherwise expressed a view on the quality of the investment. The SEC and USCIS are aware of attempts to misuse the EB-5 program as a means to carry out fraudulent securities offerings. For example, in a recent case, SEC v. Marco A. Ramirez, et al., the SEC and USCIS worked together to stop an alleged investment scam in which the SEC claims that the defendants, including the “USA Now” regional center, falsely promised investors a 5 percent return on their investment and an opportunity to obtain an EB-5 visa. The promoters allegedly started soliciting investors before USCIS had designated the business as a regional center. The SEC alleged that while the defendants told investors their money would be held in escrow until USCIS approved the business as eligible for EB-5, the defendants misused investor funds for personal use, such as funding their Cajun-themed restaurant. According to the SEC’s complaint, the investors did not obtain even conditional visas as a result of their investments through the USA Now regional center.

In another case, SEC v. A Chicago Convention Center, et al., the SEC and USCIS coordinated their efforts to halt an alleged $156 million investment fraud. The SEC alleged that an individual and his companies used false and misleading information to solicit investors in the “World’s First Zero Carbon Emission Platinum LEED certified” hotel and conference center in Chicago, including falsely claiming that the business had acquired all necessary building permits and that the project was backed by several major hotel chains. According to the SEC’s complaint, the defendants promised investors that they would get back any administrative fees they paid for their investments if their EB-5 visa applications were denied. The defendants allegedly spent more than 90 percent of the administrative fees, including some for personal use, before USCIS adjudicated the visa applications.

USCIS noted that as with any investment, it is important to research thoroughly any offering that purports to be affiliated with EB-5. USCIS recommended the following steps:

  • Confirm that USCIS has designated the regional center. If you intend to invest through a regional center, check the list of current regional centers on USCIS’s website. If the regional center is not on the list, exercise extreme caution. Even if it is on the list, understand that USCIS has not endorsed the regional center or any of the investments it offers.
  • Obtain copies of documents provided to USCIS. Regional centers must file an initial application (Form I-924) to obtain USCIS approval and designation, and must submit an information collection supplement (Form I-924A) at the end of every calendar year. Ask the regional center for copies of these forms and supporting documentation provided to USCIS.
  • Request investment information in writing. Ask for a copy of the investment offering memorandum or private placement memorandum from the issuer. Examine it carefully and research similar projects in evaluating the proposal. Follow up with any questions you may have. If you do not understand the information in the document or the issuer is unwilling or unable to answer your questions to your satisfaction, do not invest.
  • Ask if promoters are being paid. If there are supposedly unaffiliated consultants, lawyers, or agencies recommending or endorsing the investment, ask how much money or what type of benefits they expect to receive in connection with recommending the investment. Be skeptical of information from promoters that is inconsistent with the investment offering memorandum or private placement memorandum from the issuer.
  • Seek independent verification. Confirm whether claims made about the investment are true. For example, if the investment involves construction of commercial real estate, check county records to see if the issuer has obtained the proper permits and whether state and local property tax assessments correspond with the values the regional center attributes to the property. If other companies have purportedly signed onto the project, go directly to those companies for confirmation.
  • Examine structural risk. Understand that you may be investing in a new commercial enterprise that has no assets and has been established to loan funds to a company that will use the funds to develop projects. Carefully examine loan documents and offering statements to determine if the loan is secured by any collateral pledged to investors.
  • Consider the developer’s incentives. EB-5 regional center principals and developers often make capital investments in the projects they manage. Recognize that if principals and developers do not make an equity investment in the project, their financial incentives may not be linked to the success of the project.
  • Look for warning signs of fraud. Beware if you spot any of these hallmarks of fraud:
    – Promises of a visa or becoming a lawful permanent resident. Investing through EB-5 makes you eligible to apply for a conditional visa, but there is no guarantee that USCIS will grant you a conditional visa or subsequently remove the conditions on your lawful permanent residency. USCIS carefully reviews each case and denies cases where eligibility rules are not met. Guarantees of the receipt or timing of a visa or green card are warning signs of fraud.
    – Guaranteed investment returns or no investment risk. Money invested through EB-5 must be at risk for the purpose of generating a return. If you are guaranteed investment returns or told you will get back a portion of the money you invested, be suspicious.
    – Overly consistent high investment returns. Investments tend to go up and down over time, particularly those that offer high returns. Be suspicious of an investment that claims to provide, or continues to generate, high rates of return regardless of overall market conditions.
  • Unregistered investments. Even though a regional center may be designated as a regional center by USCIS, most new commercial enterprise investment opportunities offered through regional centers are not registered with the SEC or any state regulator. When an offering is unregistered, the issuer may not provide investors with access to key information about the company’s management, products, services, and finances that registration requires. In such circumstances, investors should obtain additional information about the company to help ensure that the investment opportunity is bona fide.
  • Unlicensed sellers. Federal and state securities laws require investment professionals and their firms who offer and sell investments to be licensed or registered. Designation as a regional center does not satisfy this requirement. Many fraudulent investment schemes involve unlicensed individuals or unregistered firms.
  • Layers of companies run by the same individuals. Some EB-5 regional center investments are structured through layers of different companies that are managed by the same individuals. In such circumstances, confirm that conflicts of interest have been fully disclosed and are minimized.

USCIS noted that if an investment through EB-5 turns out to be in a fraudulent securities offering, the investor may lose both his or her money and a path to lawful permanent residence in the United States. USCIS said any EB-5 offering should be carefully vetted before investing money and hope of becoming a lawful permanent resident in the United States.

USCIS ALERT That page also has links to the alert in Chinese, Korean, and Spanish.

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4. USCIS Reminds Filipinos of Immigration Relief Measures Following Typhoon; US-CERT Warns About Scams

Following Typhoon Haiyan (Yolanda) in the Philippines, U.S. Citizenship and Immigration Services (USCIS) is reminding Filipino nationals that they may be eligible for certain immigration relief measures if requested.

USCIS said it understands that a natural disaster can affect an individual’s ability to establish or maintain lawful immigration status in the United States. Filipino nationals affected by Typhoon Haiyan may be eligible to benefit from the following immigration relief measures:

  • Change or extension of nonimmigrant status for an individual currently in the United States, even when the request is filed after the authorized period of admission has expired;
  • Extension of certain grants of parole made by USCIS;
  • Extension of certain grants of advance parole, and expedited processing of advance parole requests;
  • Expedited adjudication and approval, where possible, of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship (for more on this, see HERE);
  • Expedited processing of immigrant petitions for immediate relatives of U.S. citizens and lawful permanent residents (LPRs);
  • Expedited adjudication of employment authorization applications, where appropriate; and
  • Assistance to LPRs stranded overseas without immigration or travel documents, such as permanent resident cards (green cards). USCIS said that it and the Department of State will coordinate on these matters when the LPR is stranded in a place that has no local USCIS office.

Meanwhile, US-CERT (United States Computer Emergency Readiness Team) issued a warning about disaster-related scams and phishing attacks. After a natural disaster, phishing emails and websites requesting donations for bogus charitable organizations often appear. US-CERT said users should be aware of potential email scams and phishing attacks regarding the Philippines typhoon disaster. Email scams may contain links or attachments that may direct users to phishing or malware-laden websites.

US-CERT encourages users to take various measures to protect themselves, including not clicking on unsolicited web links or attachments in email messages, and reviewing the Federal Trade Commission’s Charity Checklist and the Better Business Bureau’s National Charity Report Index.

USCIS ANNOUNCEMENT

ADDITIONAL INFORMATION ON TYPES OF RELIEF

INFORMATION FROM US-CERT ON DISASTER-RELATED SCAMS

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5. DHS Proposes SEVP Rule

The Department of Homeland Security (DHS) has proposed to amend its regulations under the Student and Exchange Visitor Program (SEVP) to improve management of international student programs and increase opportunities for study by spouses and children of nonimmigrant students. The proposed rule would grant school officials more flexibility in determining the number of designated school officials to nominate for the oversight of campuses. The rule also would provide greater incentives for international students to study in the United States by permitting accompanying spouses and children of academic and vocational nonimmigrant students in F-1 or M-1 nonimmigrant status to enroll in study at an SEVP-certified school so long as any study remains less than a full course of study. F-2 and M-2 spouses and children may not engage in a full course of study unless they apply for, and DHS approves, a change of nonimmigrant status to a status authorizing such study.

PROPOSED RULE Comments are due by January 21, 2014.

 

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6. USDA Postpones Release of 2014 AEWR Wage Data

On October 17, 2013, the United States Department of Agriculture (USDA) announced a change in the schedule for the release of certain reports due to the lapse in appropriations resulting in the federal government shutdown. Among the affected reports is the Farm Labor Survey (FLS) report upon which the Department relies to establish the Adverse Effect Wage Rates in the H-2A program. The new release date for the FLS report is December 5, 2013.

DETAILS

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7. DOL Publishes Three Final Rules Eliminating Obsolete OFLC Regulations

The Department of Labor (DOL) has published three final rules eliminating Office of Foreign Labor Certification (OFLC) regulations that have been made obsolete by statutory or regulatory changes. The H-1A nursing visa (20 CFR 655 subparts D and E) and the F-1 student off-campus work permit (20 CFR 655 subparts J and K) regulations were based on statutes that sunset September 30, 1997, and September 30, 1996, respectively; the programs sunset at later dates and have now been completed. The logging provisions in 20 CFR subpart C were incorporated into the H-2A regulations published in the DOL’s final rule, Temporary Agricultural Employment of H-2A Aliens in the United States, at 75 Fed. Reg. 6884 (Feb. 12, 2010).

OFLC ANNOUNCEMENT

H-1A RULE

F-1 RULE

LOGGING RULE

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8. ABIL Global: Turkey

The new Residence Permit Law will overhaul immigration in Turkey.

On April 11, 2013, Law No. 6458, Law on Foreigners and International Protection, was published in the official gazette of Turkey and is set to go into effect in one year. This new law will make vast changes to residence permit eligibility and procedure, and will create a new governmental office.

The changes span a wide variety of issues, including the requirements for residing and working in Turkey, protection of victims of human trafficking, changes in business visitor rules, procedures and categories of residence status, grounds for deportation, and processing of refugees. Changes include the extension of the 90-out-of-180-day rule for tourists to business visitors. Also, sticker visas obtained at the border will only be valid for 15 days. The rule to apply for a residence permit within 30 days of entry will be extended to 90 days. The renewal of residence permits will be accepted for filing at a much earlier period of 60 days before expiration. Also, a new provision will allow the initial filing of residence permits at consular posts.

Significantly, new categories of resident permit eligibilities will be created, including for those who will open a business or buy real estate in Turkey. The law also requires the creation of a new Administration General Directorate of Migration under the Ministry of Interior, which is underway.

Residence Permits

Until April 11, 2014, residence permits are being handled by the local and regional Police Departments under the Interior Ministry. With the new law, this process will be moved to the new Directorate of Migration, as well as to consular posts for certain applications. The new Directorate will establish new offices under the governor’s and district governor’s offices around Turkey.

New categories of residence permits include short-term, long-term, family, student, humanitarian, and victims of human trafficking.

According to the new law, a foreigner must seek a residence permit in an appropriate category if he or she intends to remain in Turkey more than 90 days. This is an expansion of the previous 30-day rule. Short-Term Residence Permits will be valid up to one year. The new Long-Term Permit appears to have some similarities to a U.S. green card. This type of permit will require that the person has already resided legally and continuously in Turkey for at least eight years, shown that he or she has not required public assistance for the last three years, provided evidence of financial self-support (including health insurance), and not be a threat to public order or security.

Procedurally, the new law indicates that those applying for new residence permits must do so at a Turkish consular post in the applicant’s home country. For those who already have a current, valid residence permit, extensions must be filed with the new Directorate officials at the local governor’s office.

The new law stipulates that if a person is granted a work permit, he or she no longer must obtain a separate residence permit. This will be a relief to international assignees who have dealt with tremendous delays in residence permit issuance due to massive backlogs of applications at the local police departments in many municipal locations.

Deportation and Ban on Reentry

The law also creates new harsher procedures and penalties for deportation and a ban on the re-entry of foreigners who are out of status or not abiding by the terms of their stay. The ban may be up to five years in some circumstances such as overstaying, and up to 10 years if the person is deemed a “security threat.”

Protection of Refugees and Victims of Human Trafficking

The new law also better protects refugees and victims of human trafficking. It is a significant step for Turkey’s protection of human rights, particularly considering the refugee flow into Turkey from neighboring countries such as Syria, Iraq, and Iran. Under the new law, Turkey will not be able to return foreigners to countries where they will be subject to torture or inhumane treatment.

The new law indicates Turkey’s awareness of the need to overhaul its management of foreigners. As Turkey’s economy has grown, it is now a leading location in the region for expatriates of many international companies, as well as a prime location for new investment. As a result, the number of foreigners needing work permits has grown exponentially. Also, based on its location bordering several countries in turmoil, the processing of refugees has become a growing problem. Further detailed guidance is sorely needed well in advance of the April 11, 2014, implementation deadline.

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9. New Publications and Items of Interest

I-901 SEVIS fee payment video tutorial. The Student and Exchange Visitor Program has produced a video tutorial on the steps in the I-901 Student and Exchange Visitor Information System (SEVIS) fee payment process, including what information must be submitted and what to do once payment has been completed. VIDEO TUTORIAL

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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10. Member News

Robert Loughran presented on Immigration Considerations in Renunciation of U.S. Citizenship at the 2013 Global Residence and Citizenship Conference in Miami, Florida, on November 21, 2013.

Mr. Loughran was selected as the Austin Immigration Law “Lawyer of the Year” for 2014 by Best Lawyers.

Mr. Loughran organized and spoke on EB-5 issues for attorneys and developers at an EB-5 Summit in Houston, Texas hosted by ILW on November 15, 2013. ADDITIONAL INFORMATION

Cyrus Mehta has co-authored a new blog entry. “Parole In Place: the Secret Sauce For Administrative Immigration Reform”

Angelo Paparelli has authored several new blog entries. “Parole-in-Place—The Immigration PIPsqueak That Could Help Solve the Biggest Obstacle to Comprehensive Reform” “The Immigration-Abandonment Ploy—Fallout from a Fiddling Congress and Bickering Allies”

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11. Government Agency Links

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

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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