News from the Alliance of Business Immigration Lawyers Vol. 10, No. 5A • May 01, 2014
1. USCIS Holds Stakeholder Call on L-1A Site Visits – The L-1 inspection program is being phased in and may be extended to initial petitions and/or L-1Bs in the future.
2. USCIS H-1B Premium Processing Has Begun for FY 2015 Petitions – On April 28, 2014, USCIS began premium processing for H-1B petitions subject to the fiscal year 2015 cap, including H-1B petitions seeking an exemption from the cap for individuals who have earned a U.S. master’s degree or higher.
3. Labor Dept. Releases FAQ on Staggered Crossings of H-2B Nonimmigrants in the Seafood Industry – The Office of Foreign Labor Certification released a FAQ clarifying the agency’s role with respect to implementation of a new provision on H-2B “staggered crossings” for seafood workers.
4. State Dept. Updates Visa Reciprocity Table for Ukraine – The Department of State has updated the visa reciprocity table for Ukraine: B visa validity was updated from 60 months to 120 months.
5. New Publications and Items of Interest – New Publications and Items of Interest
6. Member News – Member News
7. Government Agency Links – Government Agency Links
1. USCIS Holds Stakeholder Call on L-1A Site Visits
U.S. Citizenship and Immigration Services (USCIS) held a stakeholder call on April 24, 2014, on the implementation of L-1A site visits for intracompany transferee managers and executives. The following are highlights from the call:
USCIS said that site visits are randomly selected and not based on suspected fraud or tips received. All L-1A extensions are included in the pool, not just new offices. The trigger is the filing of a Form I-129, Petition for a Nonimmigrant Worker, with USCIS. The agency noted that at the moment, there does not seem to be a method for including petitions filed at the border by Canadians or petitions filed at consulates based on a blanket L-1, but USCIS is trying to figure out how to include them as well.
The inspection program is being phased in and may be extended to initial petitions and/or L-1B specialized knowledge employees in the future, USCIS said. Inspection officers do not have authority to withdraw, approve, deny, or re-adjudicate a petition. Also, they do not have the authority to make a finding of fraud, but they can forward the results of the inspection to the Fraud Detection and National Security Directorate (FDNS) for further investigation. The inspection report assesses compliance with the L regulations and the result is either “verified” or “unverified.” A supervisor reviews all inspection findings.
Attorneys may be present, but officers may not wait for them to show up. Participation in the inspection is voluntary, USCIS noted. The petitioner may at any time request that the inspection be stopped, and the inspection officer will stop and create the report based on the information obtained up to that point and through other methods (e.g., Internet, telephone, email, conversations with neighbors). Stopping the investigation will not necessarily result in an “unverified” conclusion, USCIS said.
Employers should be prepared to present all documents submitted with the original L-1A petition. One caller noted that employers are not required to maintain public access files in the L context and therefore may have difficulty immediately producing these documents. USCIS replied that the production expectation is the same for Ls as it is for Hs, but they will be allowed to follow up with the officer after the inspection to clarify and/or provide requested documents that were not readily available at the time of the inspection.
According to USCIS, each inspection will touch on issues easily addressed in many cases by information contained in the L-1A petition. Some of those issues noted on the call include:
- Whether the facility employed by the business appears to be the one described in the petition.
- Whether the inspector made contact with the signatory of the petition or a human resources representative or management point of contact who could answer questions about the petition filed and the visa holder.
- Whether the information in the petition is viable and whether the documents collected related to the presence of the organization as a business.
- Whether the inspector was able to interview the beneficiary.
- Whether the petition signatory, human resources representative, or manager interviewed had knowledge of the originally filed petition associated with the beneficiary.
- Whether the inspector found the beneficiary to be working for the organization cited in the petition.
- Whether the beneficiary was knowledgeable, forthcoming, and cooperative.
- Whether the beneficiary is being compensated with the salary indicated in the petition.
- Whether the beneficiary is performing the duties indicated in the petition.
2. USCIS H-1B Premium Processing Has Begun for FY 2015 Petitions
On April 28, 2014, U.S. Citizenship and Immigration Services (USCIS) began premium processing for H-1B petitions subject to the fiscal year 2015 cap, including H-1B petitions seeking an exemption from the cap for individuals who have earned a U.S. master’s degree or higher. The annual cap is 65,000 H-1B visas, with an exemption for the first 20,000 petitions filed on behalf of those with a U.S. master’s degree or higher.
USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.
3. Labor Dept. Releases FAQ on Staggered Crossings of H-2B Nonimmigrants in the Seafood Industry
The Consolidated Appropriations Act of 2014, signed into law on January 17, 2014, includes a provision permitting the staggered entry of H-2B workers in the seafood industry under certain conditions. The Office of Foreign Labor Certification (OFLC) released frequently asked questions (FAQ) clarifying the agency’s role with respect to implementation of the new provision.
OFLC noted that all employers submitting an H-2B application for temporary employment certification must indicate their temporary need accurately, and include the starting and ending dates of need for the period in which they intend to employ H-2B nonimmigrant workers. The 2014 Appropriations Act permits employers in the seafood industry to bring into the United States, in accordance with an approved H-2B petition, nonimmigrant workers at any time during the 120-day period on or after the employer’s certified start date of need if certain conditions are met. For employers to use this provision, H-2B nonimmigrant workers must show to consular officers and to U.S. Customs and Border Protection officers, as necessary, the employer’s attestation that the conditions contained in the statute have been met.
Any seafood industry employer that permits or requires its H-2B nonimmigrant workers to enter the United States between 90 and 120 days after the certified start date of need must complete a new assessment of the local labor market during the period that begins at least 45 days after the certified start date of need and ends before the 90th day after the certified start date of need, which must include:
a) Listing job orders in local newspapers on two separate Sundays;
b) Placing new job orders for the job opportunity with the State Workforce Agency serving the area of intended employment and posting the job opportunity at the place of employment for at least 10 days; and
c) Offering the job to any equally or better qualified U.S. worker who applies for the job and who will be available at the time and place of need.
OFLC noted that a seafood industry employer must prepare a written, signed attestation indicating its compliance with the statutory conditions. Employers must download the official attestation, review the conditions contained in the attestation, and indicate compliance by signing and dating it. Such employers must provide each of their H-2B nonimmigrant workers seeking entry into the United States a copy of the signed and dated attestation, with instructions that the worker must present the documentation upon request.
This provision expires on September 30, 2014. Accordingly, no staggered entry of H-2B workers after that date will be permitted, the Department said.
The official attestation is available in PDF format on OFLC’s WEBSITE.
4. State Dept. Updates Visa Reciprocity Table for Ukraine
The Department of State has updated the visa reciprocity table for Ukraine: B visa validity was updated from 60 months to 120 months.
5. New Publications and Items of Interest
I-94 FAQ. U.S. Customs and Border Protection has released frequently asked questions (FAQ) on the Form I-94, Arrival/Departure Record. The FAQ provides responses to questions on what records can be accessed, how SEVIS records are documented, how automation of the I-94 affects the I-9 employment verification process, and other issues.
The 2014 edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
The 2014 edition adds a chapter on Singapore. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.
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.
The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis website.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOGS
6. Member News
The following ABIL members have been named to the Super Lawyers 2014 list:
H. Ronald Klasko
The following ABIL members are included in The International Who’s Who of Corporate Immigration Lawyers 2014 and The International Who’s Who of Business Lawyers 2015:
ABIL U.S. members:
H. Ronald Klasko
ABIL Global members:
Maria Isa Soter
Cyrus Mehta has published a new blog entry. “Immigrant Power: Naturalized American Wins Boston Marathon”
Mr. Mehta co-wrote a blog entry, “Will Kazarian Change the O-1 Visa?”
Angelo Paparelli has published a new blog entry. “USCIS Gets an EB-5 Earful at Immigration Listening Session”
Bernard Wolfsdorf has received the Lawyer of the Year award for Corporate Immigration from Who’s Who Legal.
Mr. Wolfsdorf will be a keynote panelist with Charles Oppenheim of the Department of State at the 7th Annual IIUSA EB-5 Regional Center Advocacy Conference, to be held at the Hyatt Regency Hotel on Capitol Hill in Washington, DC, on May 7-9, 2014. Mr. Wolfsdorf and Mr. Oppenheim will discuss “EB-5 Retrogression Predictions (and Consequences).”
Mr. Wolfsdorf will give a presentation on May 13, 2014, on raising capital for startups using EB-5 immigrant investor capital. The event will take place from 6 to 9 p.m. at ROC-Santa Monica.
Stephen Yale-Loehr was quoted by CNN in an article on immigration reform prospects published on April 21, 2014. “If I had to predict, I think the president will make some administrative fine tuning of his immigration policies in the hopes of pacifying the immigration activists,” he said. Mr. Yale-Loehr also observed that late spring and summer “might open a small window of time for Republicans to act. If the primaries in spring and summer show immigration is not that big an issue with activists, then Republicans will feel they can go out on the limb and support reform.”
Mr. Yale-Loehr has posted his first blog entry, on EB-5 visa retrogression issues. “State Department Warns That EB-5 Category May Retrogress This Summer”
7. 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