UNITED KINGDOM: Prime Minister Pulls Back on Proposed Immigration Restrictions

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Prime Minister David Cameron has scrapped his proposal to institute an “emergency brake” on immigration from the EU to the United Kingdom (UK). In January, it was reported that German Chancellor Angela Merkel expressed her willingness to discuss curbing EU migrant access to benefits with the Prime Minister, but warned that Germany was prepared to see the UK exit the EU rather than allow the UK to circumvent free movement.

Mr. Cameron’s inability to sway the EU to his position, as well as Conservatives’ concerns about debating immigration in the lead-up to the general election, have resulted in an odd calm for the moment. Most recently, and notably, the Prime Minister failed to include immigration in his six themes for the Tory manifesto despite a significant number of polls from a variety of sources showing it as one of the top issues across many demographics.

In a recent YouGov survey, when Britons were asked to list the most important issues facing the country, 52% of those surveyed cited immigration. However, when those same individuals were asked to state the most important issues they and their families faced, immigration dropped to fourth place at 20%. A January 2014 Ipsos MORI report cited a similar survey, which showed that a far greater percentage of Britons (around 70%) viewed immigration as a national issue, but only about 20% viewed immigration as an issue where they lived.

NETHERLANDS: Business Immigration Laws and Regulations Amended on a Wide Scale

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Laws and regulations relevant to business immigration were amended on a wide scale on January 1, 2014.

Most of the new changes improve options to deploy foreign staff in the Netherlands, such as the introduction of short-stay highly skilled migrant (HSM) permits. Some changes, however, are restrictive, such as the increase of the term for obtaining full labor market access (from 3 to 5 years). An incidental legislative fluke raised considerable concern over work permits for business meetings. That was temporarily mended. More about this below.

Business Meetings

On January 1, 2014, the government, by mistake, drastically limited business travel. Due to a legislative error, the work permit exemption for business visitors was limited to a single business trip per year. Although the period during which the exemption applies was extended from 4 weeks (within a period of 13 weeks) to 13 weeks (within a period of 52 weeks), the word “uninterrupted” was added so that, effectively, only one trip per 52 weeks is allowed, whereas under the existing rule several trips per year were allowed. Given that business is generally not conducted in one trip, this amendment seemed to work out in practice as a limitation rather than an extension of the existing possibilities. Kroes Advocaten, together with several other parties, including the Amsterdam Expatcenter, lobbied for a quick solution. On January 10, the Ministry of Social Affairs confirmed that until further notice, the work permit exemption for business meetings remains as it was before January 1. This means that business meetings are allowed again for a period of up to 4 weeks, whether interrupted or not, within a period of 13 weeks. In the meantime, the Ministry is working on a more permanent solution.

Intra-Company Transferees: Salary Threshold for Trainees Introduced

Multinationals transferring trainees to their entities in the Netherlands must offer their trainees at least the gross annual salary of €38,145 (€3,205.44 per month) to receive a work permit. This regulation took effect January 1, 2014. Under the existing rules, the salary requirement was at “market level” without a specific threshold amount.

Highly Skilled Migrants: Work Permits for Short Stays

As a residence permit scheme, the HSM scheme did not until recently offer solutions for short stays (fewer than 90 days). A temporary pilot for short stays was launched in 2013 and was successful. It was introduced as a permanent option on January 1, 2014. The Labor Office issues a work permit for up to 3 months for work as a highly skilled migrant. In addition, employees from non-visa exempt countries must apply for a Schengen visa. As with the regular HSM scheme, the employer must have recognized sponsor status, and the HSM salary thresholds also apply; i.e., employees under the age of 30 must earn a gross monthly salary of at least €3,205.44, and employees of 30 years and above must earn €4,371.84.

New Work Permit Exemptions

Employees of multinationals transferred temporarily for the purpose of attending in-house company training in the Netherlands are, as of January 1, 2014, exempt from the work permit requirement. The maximum period for this work permit exemption is 12 uninterrupted weeks within a period of 36 weeks.

Revision of the Employment of Foreigners Act

The Employment of Foreigners Act was revised as of January 1, 2014. Work permits will only be issued for a maximum period of 1 year; previously it was 3 years. The Labor Office also no longer must assess whether registered job applicants are available and suitable for the vacancy. The Labor Office can simply refer to any job-seekers registered for the job function in the database to refuse a work permit application, regardless of whether these job-seekers are actually fit for the job or even interested. The Ministry of Social Affairs can also set a quota each year for the maximum number of work permits that can be issued for a specific sector.

Another change is that foreign workers who have held a residence permit for the purpose of working for 5 consecutive years will no longer face any labor market restriction. Under the previous law, the restriction could be lifted after 3 years of stay.

EU Nationals: Registration at Immigration Office No Longer Required

European Union (EU) nationals no longer need to register with the Immigration Service (IND) and obtain a sticker in their passport confirming their legal stay as an EU citizen. A valid passport or identity card is now sufficient proof of legal stay in the Netherlands. The new rule also applies to nationals of the European Economic Area and Switzerland.

Biometrics Introduced: Fingerprints

Residence permit applicants no longer must provide a passport photo and a signed photo form. Instead, they must visit an IND office where a digital passport photo is taken. In addition, fingerprints are taken, which were not required previously. These biometric data will be stored in a database of the IND pursuant to EU regulations. Applicants with a nationality requiring an entry clearance visa (MVV) must have their fingerprints taken by the relevant Dutch representative abroad, and provide a passport photo that will then be scanned on site, presumably with the exception of Dutch posts that have equipment to take digital passport photos.

Romanian and Bulgarian Nationals Enter the Dutch Labor Market

As of January 1, 2014, Bulgarian and Romanian nationals are free to enter the Dutch labor market. Employers no longer need a work permit for them. Bulgaria and Romania joined the EU in 2007, but pursuant to transition provisions the Dutch government was allowed to postpone the free movement of workers from these countries until January 1, 2014. On July 1, 2013, Croatia became the 28th member state of the European Union. Under comparable transition measures, the Dutch government has kept the work permit requirement in place for Croatian nationals.

Highly Skilled Migrants/EU Blue Card: New Salary Thresholds and Government Fees

The salary threshold for highly skilled migrants wishing to obtain an EU Blue Card residence permit in 2014 is €61,470 gross per annum.

The salary thresholds for highly skilled migrants (knowledge migrants) and EU Blue Card applicants have been slightly raised as of January 1, 2014. The HSM salary threshold now applies monthly and, in addition, the salary must be transferred monthly to a bank account in the name of the highly skilled migrant.

The government application fees for HSM and EU Blue Card applicants were raised as of January 1 to €861. The IND fee for renewals of these permits is now €360.

The link to the chart below shows the gross salary amounts that apply as of January 1, 2014.

Download

ITALY: Deadline Extended for Quota Applications for Some Worker Categories

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The Italian government has extended until December 31, 2014 (previous deadline was August 20, 2014) the deadline for filing quota applications for workers trained abroad and for conversion of CE permits issued by other EU countries into subordinate or autonomous work permits.

ITALY: New Guidelines for Internships for Non-EU Nationals

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The Italian government has released new guidelines for the activation of internship programs for foreign nationals. The guidelines provide Immigration Offices and the Italian Regions with instructions clarifying the criteria to be met by non-European Union nationals coming to Italy for internships.

This is not expected to have a major impact on immigration in Italy but should simplify the evaluation of applications for internship visas, which have always represented a gray area within the Italian immigration system.

News from the Alliance of Business Immigration Lawyers Vol. 10, No. 1B • January 15, 2014

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Headlines:

1. Is Immigration Reform Possible in 2014? – House Speaker John Boehner hopes to push immigration reform legislation forward in 2014, a year in which midterm elections will take place in November.

2. Visa Bulletin Shows Advancement in Several Categories – The Department of State’s Visa Bulletin for February 2014 shows advancement in priority dates for several employment-based categories.

3. DOL Releases 2014 Adverse Effect Wage Rates – The AEWRs are the minimum hourly wage rates the Department has determined must be offered and paid by employers to H-2A workers and workers in corresponding employment for a particular agricultural job and area.

4. Indian Diplomat Indicted for Visa Fraud, False Statements – The case sparked diplomatic tensions between the United States and India.

5. California Supreme Court Rules Undocumented Immigrant Can Receive Law License – California’s Supreme Court ruled that an undocumented immigrant who received a law degree and passed the state bar exam must be given his license to practice law in California.

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. Is Immigration Reform Possible in 2014?

U.S. House of Representatives Speaker John Boehner reportedly hopes to push immigration reform legislation forward in 2014, a year in which midterm elections will take place in November. He faces competing pressures: on one side are those advising that immigration reform efforts could help Republicans win the Hispanic vote; on the other side are anti-immigration conservatives and Tea Party members who would prefer no action other than enforcement.

Observers expect that Mr. Boehner will act piece-by-piece rather than trying to advance one comprehensive immigration reform bill. He may wait until after Republican primaries occur this spring. “There are a lot of private conversations underway to try to figure out how do we best move on a common-sense, step-by-step basis to address this,” he said. At a recent news conference, he noted, “The only way to make sure immigration reform works this time is to address these complicated issues one step at a time.”

Meanwhile, Thomas Donohue, the president and CEO of the U.S. Chamber of Commerce, said in his “State of American Business 2014” remarks on January 8, 2014, that “the pundits will tell you it’s going to be hard to accomplish much of anything in an election year. We hope to turn that assumption on its ear by turning the upcoming elections into a motivator for change. It’s based on a simple theory—if you can’t make them see the light, then at least make them feel some heat.” Speaking generally on immigration issues, he added, “we’re determined to make 2014 the year that immigration reform is finally enacted. The Chamber will pull out all the stops—through grassroots lobbying, communications, politics, and partnerships with unions, faith organizations, law enforcement and others—to get it done.”

The big question is whether immigration reform legislation can move forward in a midterm election year in which all 435 House seats are up for grabs, along with 33 of the 100 Senate seats, 38 state and territorial governorships, and numerous state and local elections. Given recent hyper-partisan experience in Congress, some say continued gridlock is likely. “I can’t imagine Congress doing much more than nominations and appropriations bills,” said Jim Manley, a former aide to Senate Majority Leader Harry Reid (D-Nev.). However, major legislation has passed in election years, often after primary season. “For many members [of the House], they’d be more comfortable when their primaries are over,” said California Rep. Darrell Issa.

MR. DONOHUE’S REMARKS

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2. Visa Bulletin Shows Advancement in Several Categories

The Department of State’s Visa Bulletin for February 2014 shows advancement in priority dates for several employment-based categories.

The employment-based third preference “Worldwide” and “Other Workers” categories both advanced two months, from April 1, 2012, to June 1, 2012. The China-mainland born employment-based second preference category moved ahead one month, from December 8, 2008, to January 8, 2009. The India second preference stayed put at November 15, 2004, as did Mexico and the Philippines, which both remained Current for the second preference. The employment-based third preference “Other Workers” category moved ahead by two months for every category except India, which remained at September 1, 2003. Other categories remained Current.

VISA BULLETIN FOR FEBRUARY 2014

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3. DOL Releases 2014 Adverse Effect Wage Rates

The Department of Labor has published a notice in the Federal Register announcing new Adverse Effect Wage Rates (AEWRs) in calendar year 2014 for each state, based on the Farm Labor Survey conducted by the U.S. Department of Agriculture. The AEWRs are the minimum hourly wage rates the Department has determined must be offered and paid by employers to H-2A temporary agricultural workers so that the wages of similarly employed U.S. workers will not be adversely affected.

FEDERAL REGISTER NOTICE

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4. Indian Diplomat Indicted for Visa Fraud, False Statements

In a case that has sparked diplomatic tensions between the United States and India, a grand jury for the U.S. Attorney for the Southern District of New York has indicted Devyani Khobragade, an Indian diplomat with an A-1 nonimmigrant visa, on charges of visa fraud and making false statements to U.S. authorities to obtain an A-3 visa for her domestic worker, whom she brought with her to the United States when she was posted to the consulate of India in New York in 2012.

The indictment notes that Ms. Khobragade did not pay the domestic worker the required wages under U.S. law or provide her with other protections mandated by U.S. law and publicized to foreign diplomats, despite representing that she would do so. Among other things, the indictment alleges that Ms. Khobragade submitted a fraudulent employment agreement that made it appear that she and the worker had entered into an agreement that complied with U.S. labor laws and the prevailing wage. The true wage was approximately $573 per month, or $6,876 per year regardless of overtime. Once in the United States, the worker often worked up to 100 hours per week with no full day off, which resulted in an actual hourly wage of approximately $1.42 or less. Ms. Khobragade took the worker’s passport and never returned it. The worker fled after about seven months and sought aid from a nonprofit anti-human trafficking organization. Ms. Khobragade had various people attempt to persuade the worker to return to India and not report her experience. She also started legal proceedings in India against the worker and her husband.

Following her indictment, Ms. Khobragade received diplomatic immunity and returned to India. Her husband and two daughters remain in New York. The case provoked outrage among protesters who allege that she was strip-searched and put in a jail cell with criminal defendants before her release on $250,000 bail. Subsequently, India expelled U.S. diplomat Wayne May, reportedly in retaliation for Ms. Khobragade’s treatment in the United States.

An A-3 visa allows the personal attendants, employees, or servants of a principal A-1 or A-2 visa holder to enter the United States. The exhibits attached to the indictment note the requirements for an A-3 domestic worker visa, including that the applicant will receive a fair wage comparable to that being offered in the area of employment, and that the applicant must submit an employment contract with provisions stating the working hours (normally 35-40 hours per week with a minimum of one full day off each week), and other requirements.

INDICTMENT AND ATTACHMENTS

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5. California Supreme Court Rules Undocumented Immigrant Can Receive Law License

California’s Supreme Court ruled on January 2, 2014, that Sergio Garcia, an undocumented immigrant who received a law degree and passed the state bar exam in 2009, must be given his license to practice law in California. Mr. Garcia came to the United States from Mexico when he was 17 months old.

Mr. Garcia lived in California until 1986 (when he was 9 years old) and then he and his parents moved back to Mexico. In 1994, when Garcia was 17 years old, he and his parents returned to California; again he entered the country without documentation. His father obtained U.S. citizenship in 1999. His father has filed a green card petition for Mr. Garcia, but it remains stuck in a long backlog.

The court noted that in response to questions on the California state bar’s application for determination of moral character, Mr. Garcia stated that he is not a United States citizen and that his immigration status was “pending.” A bar committee conducted an extensive investigation of Garcia’s background, employment history, and past activities; received numerous reference letters supporting Garcia’s application and attesting to his outstanding moral character and significant contributions to the community; and determined that Mr. Garcia possessed the requisite good moral character to qualify for admission to the state bar. The committee told the California Supreme Court that, to its knowledge, “this is a case of first impression, as we are not aware of any other jurisdiction that has ever knowingly admitted an undocumented alien to the practice of law.”

“I never in my life imagined it would take me longer to win my right to practice than it took to actually get my degree. I’m glad California is moving forward and I think we’re setting a good example for the rest of the country,” Mr. Garcia said after the decision.

California’s legislature passed a law in 2013 stating that undocumented immigrants could obtain legal licenses, and Governor Jerry Brown signed it. Similar cases are pending in New York and Florida.

CALIFORNIA SUPREME COURT’S DECISION

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6. New Publications and Items of Interest

Best and worst: IMMI Awards announced. The “Nation of Immigrators” blog has released its annual list of the year’s best and worst in immigration policy and law.

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

Angelo Paparelli has authored two new blog entries. “Half a Loaf Immigration Reform” and “Tips from an Immigration Insider: How to Excel at a U.S. Visa Interview”

Stephen Yale-Loehr was quoted in several Gannett newspaper articles on House of Representatives Speaker John Boehner’s expected upcoming efforts to move immigration reform forward. Mr. Yale-Loehr noted that immigration legislation is a “minefield” for Mr. Boehner. On one side, immigration reform could be a way to win over Hispanic voters, Mr. Yale-Loehr observed. On the other side, House conservatives and Tea Party members could fight against such an effort. One of the newspapers in which the article appeared is 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 post

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NETHERLANDS: Highly Skilled Migrant Scheme

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Additional conditions concerning salary payment will take effect January 1, 2014, for the highly skilled migrant residence permit. The main condition to meet the gross annual salary threshold is changed to a monthly salary threshold. The highly skilled migrant must receive the applicable amount (excluding 8% holiday pay, which can still be paid annually) monthly in his or her bank account. The change is expected to affect highly skilled migrants wanting to take unpaid sabbatical leave, and other types of unpaid leave such as parental leave.

NETHERLANDS: New Work Permit Exemptions

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The government is introducing additional work permit exemptions on January 1, 2014. Currently, foreign staff attending an in-house company training in the Netherlands are not exempted from the work permit requirement. This will change for multinational organizations transferring employees to their Dutch establishments for certain training purposes. The maximum period for this work permit exemption is 12 uninterrupted weeks in a period of 36 weeks.

The work permit exemption for the purpose of business meetings will also change. Business meetings under the current regulation are allowed for 4 weeks, interrupted or not, in a period of 13 weeks. This will change to 13 uninterrupted weeks in a period of 52 weeks. Due to the addition of “uninterrupted,” this change could work out in practice as an important limitation on the existing possibilities. The new rule allows business visitors only one business trip to the Netherlands per year, whereas under the old rule several trips were allowed. The government has not explained why the new rule was formulated in this way. The general view is that the addition of “uninterrupted” was a legislative fluke that should be corrected as soon as possible.

An exemption is also being introduced for accompanying staff of performing artists and sports professionals.

AUSTRALIA: Australian Government Revised Labor Market Testing Requirements in the 457 Visa 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 to work in Australia temporarily. 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 475 VISA

News from the Alliance of Business Immigration Lawyers Vol. 10, No. 1A • January 01, 2014

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Headlines:

1. DHS OIG Report on EB-5 Regional Center Program Stirs Controversy – The Department of Homeland Security’s Office of Inspector General has released a controversial new report on the EB-5 regional center program that includes four recommendations.

2. OSC Reiterates That Employers May Not Institute a Hiring Preference for U.S. Citizens Unless Required To Do So – The OSC encourages employers considering a restriction on hiring based on citizenship status to ensure that it is properly restricting the position. Not to do so is to risk the imposition of sanctions, penalty fines, reporting requirements, and back pay.

3. OSC Clarifies I-9 Verification for Refugees, Asylees – The OSC clarified the application of documentation requirements related to I-9 work authorization verification for refugees and asylees.

4. DOL Postpones Action on Decision Vacating Supplemental Prevailing Wage Determinations – The DOL is postponing action on a decision vacating supplemental prevailing wage determinations issued in light of an interim final H-2B wage rule.

5. Philippines Requests TPS Designation – The government of the Philippines has asked the Obama administration to designate the Philippines for temporary protected status in the wake of Typhoon Yolanda/Haiyan.

6. SSA Updates Operations Manual Re Same-Sex Marriages in Foreign Jurisdictions – The SSA issued new instructions for obtaining legal opinions on the validity of foreign same-sex marriages in light of the Supreme Court decision in United States v. Windsor. The new instructions include policy, process, and procedures for processing same-sex marriage cases.

7. DHS, USCIS Personnel Changes Announced – The U.S. Senate confirmed the nomination of Alejandro Mayorkas to be Deputy Secretary of Homeland Security; the Obama administration nominated Leon Rodriguez to lead USCIS.

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links

Details:

1. DHS OIG Report on EB-5 Regional Center Program Stirs Controversy

The Department of Homeland Security’s Office of Inspector General (OIG) has released a controversial new report on the EB-5 regional center program that includes four recommendations.

OIG report highlights. As background, Congress enacted the employment-based fifth preference (EB-5) green card category in 1990 to stimulate the U.S. economy through direct job creation and capital investment by foreign investors. Congress added a regional center pilot program to the EB-5 category in 1992 to pool investor money in a defined industry and geographic area to create both direct and indirect jobs.

An EB-5 investor must invest $500,000 if his or her investment is in a high unemployment area or a rural area. Otherwise the investor must invest $1 million. Each foreign investor must create or preserve at least 10 full-time jobs for qualifying U.S. workers within 2 years.

The OIG report notes several conditions that prevent U.S. Citizenship and Immigration Services (USCIS) from administering and managing the EB-5 regional center program effectively. First, the laws and regulations governing the program do not give USCIS authority to deny or terminate a regional center’s participation based on fraud or national security concerns; the program extends beyond the current USCIS mission. Second, USCIS is unable to demonstrate the benefits of foreign investment in the U.S. economy.

Additionally, the report notes, USCIS has difficulty ensuring the integrity of the regional center program. USCIS does not always ensure that regional centers meet all program eligibility requirements, and USCIS officials differently interpret and apply regulations and policies. Also, USCIS did not always document its decisions and responses to inquiries, making the program vulnerable to perceptions about internal and external influences.

As a result, the report states, USCIS is limited in its ability to prevent fraud and national security threats and cannot demonstrate that the program is improving the U.S. economy and creating jobs for U.S. citizens, as intended by Congress.

OIG recommends that USCIS: (1) update and clarify its regulations; (2) develop memoranda of understanding with the Departments of Commerce and Labor and the Securities and Exchange Commission to provide expertise and involvement in the adjudication of applications and petitions for the EB-5 regional center program; (3) conduct comprehensive reviews to determine how EB-5 funds have actually stimulated growth in the U.S. economy in accordance with the intent of the program; and (4) establish quality assurance steps to promote program integrity and ensure that regional centers comply with regulatory requirements.

Reaction. IIUSA, the industry trade association that represents over 130 EB-5 regional centers that serve over 40 states and territories and account for over 95% of the capital flowing through the EB-5 regional center program, said it was “puzzled” by the OIG’s findings and conclusions. IIUSA said that many of the reforms the OIG identified as necessary were already underway, and that USCIS had refuted other criticisms in its response to the report.

For example, IIUSA noted that USCIS has created a new Immigrant Investor Program Office staffed by trained economists, experts in business and immigration law, and fraud and national security specialists, now led by a former director of the Treasury Department’s Financial Crimes Enforcement Network. USCIS plans for all EB-5 related adjudications to be relocated to this office over the next six months. IIUSA also noted that USCIS has clarified its guidance for adjudicators in a comprehensive EB-5 policy memorandum and has strengthened interagency relationships.

IIUSA said these and other rebuttals in the USCIS response “should raise significant questions about the credibility of the report,” which was “further undermined by the recent resignation of [Charles Edwards, DHS’s Acting Inspector General], who himself was under investigation.”

The OIG report notes that USCIS agreed with three of the four OIG recommendations. Details of the OIG’s analysis and USCIS’s response are included in the report, “United States Citizenship and Immigration Services’ Employment-Based Fifth Preference (EB-5) Regional Center Program,” OIG-14-19.

IIUSA’s STATEMENT IN RESPONSE TO THE REPORT

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2. OSC Reiterates That Employers May Not Institute a Hiring Preference for U.S. Citizens Unless Required To Do So

In response to a query, Alberto Ruisanchez, Acting Deputy Special Counsel of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), reiterated that employers may not institute a hiring preference for U.S. citizens unless required to do so to comply with a law, regulation, executive order, or government contract. Individuals protected from citizenship status discrimination include U.S. citizens, lawful permanent residents, refugees, and asylees.

Mr. Ruisanchez said the OSC encourages employers considering a restriction on hiring based on citizenship status to ensure that it is properly restricting the position. Not to do so is to risk the imposition of sanctions, penalty fines, reporting requirements, and back pay.

Mr. Ruisanchez noted that the OSC cannot give an advisory opinion based on any particular set of facts. The query was from Gretta Rowold, Executive Director of Secure Research Operations for the University of Oklahoma’s Office of Legal Counsel. She told the OSC that the university negotiates sponsored research agreements with non-university parties and periodically is asked to restrict participants to U.S. citizens only, and that the organizations sponsoring the research in some cases are unwilling or unable to provide justification for the requirement other than stating that the organization does sensitive work, or has a U.S. government customer who wouldn’t like it if non-U.S. citizens were involved in their projects. She asked the OSC what exposure the university might have under the law, and what type of justification or documentation is appropriate to protect the university against liability.

OSC’s RESPONSE LETTER, sent on November 20, 2013.

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3. OSC Clarifies I-9 Verification for Refugees, Asylees

In response to a query, Seema Nanda, Deputy Special Counsel of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), clarified the application of documentation requirements related to Form I-9 work authorization verification for refugees and asylees. Eileen Scofield of Alston & Byrd asked what steps employers should take when an asylee or refugee worker presents for initial I-9 verification purposes a Form I-766, employment authorization document (EAD), that subsequently expires, considering the fact that asylees and refugees have unrestricted work authorization.

Ms. Nanda noted that when completing the I-9, a worker must select a box in Section 1 indicating his or her status. The selection applicable to “refugees and asylees—alien authorized to work” has a field that requests “expiration date, if applicable.” The I-9 instructions provide that refugees or asylees may write “N/A” in the space provided for the expiration date in Section 1. After employees complete Section 1, they must present documents evidencing identity and employment eligibility for the employer to complete Section 2. USCIS guidance provides that refugee and asylee workers are not required to present an EAD for Section 2 to complete the I-9. They may choose to present other documents, such as a driver’s license (List B) and unrestricted Social Security card (List C), to satisfy the I-9 requirements. The I-9 instructions further provide that reverification of a worker’s employment authorization does not apply to refugees and asylees “unless they chose to present evidence of employment authorization in Section 2 that contains an expiration date and requires reverification, such as Form 1-766, Employment Authorization Document.” Thus, Ms. Nanda said, an employer that reverifies the employment authorization of an asylee or refugee who originally presented an EAD upon the EAD’s expiration is following USCIS guidance. OSC therefore would be “unlikely to find a violation of the anti-discrimination provision unless the employer somehow acted in a discriminatory manner based on national origin or citizenship status,” Ms. Nanda said.

Ms. Scofield also asked about refugee and asylee workers who are unable to present a new unexpired EAD by the date of expiration of their originally presented EAD. Ms. Nanda responded that for reverification, an employee may present unexpired documentation from either List A or List C showing he or she is still authorized to work. Employers cannot require the employee to present a List A document. Thus, she noted that a refugee or asylee who originally presented an EAD could, for example, present an unrestricted Social Security card at reverification. Furthermore, the receipt rule would allow a worker to present a receipt for a lost, stolen, or misplaced document for reverification purposes. To the extent an employer requires an employee to present a specific document, such as an unexpired EAD, for reverification purposes, it may violate the anti-discrimination provision’s prohibition against document abuse, Ms. Nanda warned.

OSC’s RESPONSE LETTER, which was sent on September 25, 2013.

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4. DOL Postpones Action on Decision Vacating Supplemental Prevailing Wage Determinations

The Department of Labor (DOL) announced on December 20, 2013, that it is postponing action on a decision vacating supplemental prevailing wage determinations issued in light of an interim final H-2B wage rule.

On December 3, 2013, the Board of Alien Labor Certification Appeals (BALCA) issued an en banc decision in Matter of Island Holdings LLC (2013-PWD-00002). That decision vacated the supplemental prevailing wage determinations issued in light of the DOL’s interim final H-2B wage rule (78 Fed. Reg. 24047, Apr. 24, 2013). A class action complaint has been filed in the district court in the Eastern District of Pennsylvania, challenging the Island Holdingsdecision, CATA v. Perez, 13-CV-07213.

The DOL’s Office of Foreign Labor Certifications (OFLC) said that after a full review of the Island Holdings decision and the district court complaint, the DOL has decided to postpone action on the Island Holdings decision pending judicial review. “This action is in the interest of justice, given the confusion and substantial disruption that would be created if the Department implemented the decision and it was subsequently overturned by the district court,” the OFLC noted. Accordingly, all OFLC actions related to the resolution of appeals in the supplemental prevailing wage decisions will be stayed pending the resolution of the district court action.

ANNOUNCEMENT

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5. Philippines Requests TPS Designation

The government of the Philippines has asked the Obama administration to designate the Philippines for temporary protected status (TPS) in the wake of Typhoon Yolanda/Haiyan, which killed more than 6,000 people and displaced millions. The request was relayed to the Department of Homeland Security (DHS). Not only would this give an estimated 1 million Filipinos in the United States the opportunity to stay and work, but it would also allow them to send remittances back home. As of the date of publication of this newsletter, the DHS has not acted on the request.
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6. SSA Updates Operations Manual Re Same-Sex Marriages in Foreign Jurisdictions

The Social Security Administration (SSA) has added a new section to its Program Operations Manual System (POMS) providing instructions for obtaining legal opinions on the validity of foreign same-sex marriages in light of the Supreme Court’s decision in United States v. Windsor. The new POMS instructions include policy, process, and procedures for processing same-sex marriage cases.

The SSA noted that under Windsor, the agency is no longer prohibited from recognizing same-sex marriages for purposes of determining benefits. Consequently, all claims filed on or after June 26, 2013, or that were pending final determination at the time of that decision are subject to Windsor instructions. The SSA said it is working with the Department of Justice to interpret the decision.

The new POMS instructions are available HERE, HERE and HERE.

DECISION IN UNITED STATES V. WINDSOR

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7. DHS, USCIS Personnel Changes Announced

The U.S. Senate confirmed the nomination of Alejandro Mayorkas to be Deputy Secretary of Homeland Security on December 20, 2013, by a vote of 54-41. Mr. Mayorkas has been head of U.S. Citizenship and Immigration Services (USCIS) since 2009.

Meanwhile, the Obama administration nominated Leon Rodriguez to lead USCIS. Since 2011, Mr. Rodriguez has served as the Director of the Office for Civil Rights at the Department of Health and Human Services. From 2010 to 2011, he served as Chief of Staff and Deputy Assistant Attorney General for Civil Rights at the Department of Justice (DOJ). Previously, Mr. Rodriguez was County Attorney for Montgomery County, Maryland, from 2007 to 2010. He was a principal at Ober, Kaler, Grimes & Shriver in Washington, DC, from 2001 to 2007. He served in the U.S. Attorney’s Office for the Western District of Pennsylvania from 1997 to 2001, first as Chief of the White Collar Crimes Section from 1998 to 1999 and then as First Assistant U.S. Attorney until his departure. Before joining the U.S. Attorney’s Office, Mr. Rodriguez was a trial attorney in the DOJ’s Civil Rights Division from 1994 to 1997 and a Senior Assistant District Attorney at the Kings County District Attorney’s Office in New York from 1988 to 1994. He received a B.A. from Brown University and a J.D. from Boston College Law School.

WHITE HOUSE ANNOUNCEMENT FOR MR. RODRIGUEZ

MORE ON MR. MAYORKAS

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8. New Publications and Items of Interest

Vote for Best and Worst: IMMI Awards. The “Nation of Immigrators” blog is preparing its annual list of the year’s best and worst in immigration policy and law. FOR DETAILS AND TO VOTE

EOIR launches Facebook page. The Executive Office for Immigration Review (EOIR) has opened a Facebook account to assist the agency in providing interested parties with information about news, events, and announcements through a second social media channel. EOIR’s website, will continue to be the agency’s primary source of information online. Receive EOIR updates by liking EOIR on Facebook and by continuing to follow @DOJ_EOIR on Twitter at follow @DOJ_EOIR.

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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9. Member News

Kehrela Hodkinson was quoted in an article on U.S. visa questions in the November 20, 2013, edition of the Financial Times. She noted that clients are not always likely to answer incriminating questions on visa applications truthfully.

Charles Kuck has published a new blog entry. “Obama—Still the Deportation President”

Cyrus Mehta has authored or co-authored several new blog entries. “Top Ten Posts on the Insightful Immigration Blog in 2013” “One Step Forward, Two Steps Backwards: Immigration Benefits for Same Sex and Domestic Partners in India”

Angelo Paparelli has authored a new blog entry. “Immigration Triangulation—Another Dysfunctional Government Policy”

Mr. Paparelli has announced the 2013 Nation of Immigrator (“IMMI”) awards.

Bernard Wolfsdorf is the Program Chair for the American Immigration Lawyers Association’s Midyear Conference focusing on “Strategies in Advising Entrepreneur & Investor Visas,” to be held January 24, 2014, at the Westin Grand Cayman Seven Mile Beach Resort. Mr. Wolfsdorf will be the Discussion Leader on the EB-5 Essentials Panel.

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10. 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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