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