SOUTH AFRICA: Major Changes in Immigration Law and Regulations

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There have been major changes in South African immigration law and regulations.

The 2007 and 2011 Amendments to the Immigration Act, 2002, along with a revised set of regulatory provisions, took effect May 26, 2014, along with the appointment of a new Minister of Home Affairs. There are significant technical shortcomings in the regulations. As a result, substantial corrections by the Department of Home Affairs are expected.

This summary focuses on the content and impact of the new regulations in the short term.

Visas Versus Permits

There is one significant change in the language: “Permits” are now known as “visas.” This is the case regardless of the period of admission or the place of issuance. And the term “permit” now refers exclusively to the authorization granted to a person to take up permanent residence. Nothing else turns on this change in terminology.

Temporary Residence Visas

Visas for the self-employed, the retired, and the independently wealthy require that the applicant show the existence of a specific investment or income level. None of these amounts has been gazetted. As a result, the applicant does not know what amount is required to be shown and the Department cannot adjudicate the application. For now, these visas are “not available.”

The critical skills work visa is intended to facilitate securing “critically needed” skills for the South African economy. However, the list of critical skills also was not gazetted. So similarly, there can be no applications for a critical skills visa at this time.

The general work visa—the backbone of the work visa regime—now requires that the Department of Labour issue a certificate recommending the approval of the visa. But what must be submitted to the Department of Labour to get that recommendation remains unknown. Consequently, general visas are also “inaccessible” at this time.

Intra-company transfer work visas can be applied for. However, two significant changes have been made to this category of work visa. They will now be issued for four years, instead of the former two years; persons on two-year transfer visas can apply for an extension for a further two years, but they cannot be extended beyond that. The other important change is that an employee being transferred to South Africa to establish a branch office can now also apply for a transfer work visa.

Transitional Arrangements

The regulations do not allow for any period of transition, however brief, between the old and the new permit regimes. Unless the Department “intervenes”—as is already happening in some respects—this may cause all sorts of troubles and unnecessary embarrassment to clients, service providers, and the Department of Home Affairs.

Visa Processing Changes

Persons who are in the country now on short-term visitor visas (for periods of three months or less) cannot apply, from inside the country, to change to any other category of visa unless there are “exceptional circumstances.” The list of what constitutes “exceptional circumstances” is very limited. Such persons must now return home and apply at their nearest South African Embassy or High Commission for their new visas.

This change does not affect the position of foreign nationals who are already in South Africa on any long-term visa, such as for work, business, or study. They can apply from inside the country to extend or change status.

Another change is that all permit applications submitted inside the country must be filed no later than 60 days before the current permit expires.

In a major overhaul of the service delivery process, the Department of Home Affairs has outsourced to the private sector the acceptance of visa applications, and ancillary functions. This is the case both inside and outside the country. The service provider will charge a fee to visa applicants for this service, which will include the option of a “Premium Lounge” service (a business-class lounge).

A further development is that applicants must submit all visa applications in person to allow for the capturing of biometric data. The results of the visa applications can be collected by representatives.

People Now Overstay Their Periods of Admission At Their Peril

A major enforcement change comes in the form of the penalties that apply for overstaying the term of a visa, effective immediately. The previous fine no longer applies.

A person who overstays the term of his or her visa—by as little as a day and up to 30 days—”may be declared undesirable” and excluded for 12 months. If it happens again within a 24-month period, the person faces exclusion for two years. Overstaying more than 30 days may result in “undesirability” and exclusion for five years. Although the regulations imply that there is discretion, the directive to Immigration Officers suggests that this will be enforced rigorously.

In another enforcement-related change, the fines for contraventions of the Immigration Act have increased significantly.

Persons Seeking Asylum in South Africa

Under the previous Act, persons disclosing at a port of entry their intent to apply for asylum were issued asylum transit visas and given 14 days to report to a refugee reception office. Under the Amendment Act, asylum seekers now have five days to report to a refugee reception office or face detention and removal as undocumented migrants.

In addition, persons who are “fugitives from justice” do not qualify for visitor visas or asylum transit visas. This directly contradicts the Refugees Act, which says that no one may be denied entry to the Republic if they are fleeing persecution.

Minors Traveling Overseas Must Have Unabridged Birth Certificates and Their Own Passports

All children entering South Africa now must have unabridged birth certificates with them (which presumably must include sworn translations if these are not in English) whether or not they are travelling with their parents. This measure takes effect July 1, 2014. It applies even if the parents and children are South Africans.

Finally, all children must travel on their own passports. Inclusion on a parent’s passport is not allowed.

ABIL Members Included in Lawdragon’s List of Top 20 U.S. Immigration Lawyers

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The following ABIL members were included in Lawdragon’s list of the top 20 U.S. immigration lawyers:

News from the Alliance of Business Immigration Lawyers Vol. 10, No. 6B • June 15, 2014

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Headlines:

1. Comprehensive Immigration Reform Prospects Appear Dim Following Cantor’s Defeat – House Majority Leader Eric Cantor’s historic defeat in Virginia in favor of the vocally anti-“amnesty” David Brat suggests that Congress will not enact comprehensive immigration reform this year, although not everyone agrees.

2. DHS Announces DACA Renewal Process – The first Deferred Action for Childhood Arrivals approvals will begin to expire in September 2014. To avoid a lapse in the period of deferral and employment authorization, individuals must file renewal requests.

3. Labor Dept. Extends Transitional Worker Program for Northern Marianas – DOL has extended the transitional worker program for the Commonwealth of the Northern Mariana Islands until December 31, 2019.

4. U.S. Consulate in Osaka-Kobe Stops E-1/E-2 Nonimmigrant Visa Appointments for Summer – Through August, E visa applicants must interview at the U.S. embassy in Tokyo or the U.S. consulate in Fukuoka instead of the U.S. consulate in Osaka-Kobe.

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

6. Member News – Member News

Details:

1. Comprehensive Immigration Reform Prospects Appear Dim Following Cantor’s Defeat

House Majority Leader Eric Cantor’s (R-Va.) historic primary election defeat in Virginia on June 10, 2014, in favor of the vocally anti-“amnesty” Tea Party-backed David Brat suggests that Congress may not enact comprehensive immigration reform this year, according to many commentators. They have observed that Republicans are unlikely to want to address immigration issues in the near future now that Cantor has been defeated unexpectedly, in part because he was willing to consider measures such as a modified Dream Act for young undocumented immigrants. Even Rep. Renee Ellmers (R-N.C.), who won her primary while supporting immigration reform, noted that it was in the “forefront” of Republicans’ thinking that “in the state of shock that we are all in,…right now [comprehensive immigration reform is] not where we need to go. She acknowledged, however, that “[t]hat doesn’t mean it’s off the table.”

Candidates who want to win primaries generally must cater to their parties’ extremes and portray themselves as purists. On the other hand, Sen. Lindsey Graham (R-S.C.), who is pro-immigration reform, won his June 10 primary. Some argue that immigration issues shouldn’t take the blame for Cantor’s defeat, and that many realize that our country’s prosperity depends on resolution of thorny problems in the system. Others say that Cantor had simply grown out of touch with the people in his district, and that immigration was only one reason for his defeat. House Minority Leader Nancy Pelosi (D-Cal.) said, “I’m not one of those who thought Eric Cantor was an advocate for immigration reform. In fact, I thought he was an obstacle. So I don’t think this is an impediment to immigration reform. I don’t think the race was about immigration; it was about a lot of other things.”

With the 2014 midterm elections coming up, many candidates may not want to take any further political risks in the short term. Incremental progress may still be possible even if passing comprehensive immigration legislation remains out of reach. Stay tuned.

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2. DHS Announces DACA Renewal Process

The first Deferred Action for Childhood Arrivals (DACA) approvals will begin to expire in September 2014. To avoid a lapse in the period of deferral and employment authorization, individuals must file renewal requests before the expiration of their current period of DACA. U.S. Citizenship and Immigration Services (USCIS) encourages requestors to submit their renewal requests approximately 120 days (four months) before their current periods of deferred action expire.

On June 5, 2014, the Department of Homeland Security (DHS) announced the process for individuals to renew enrollment in DACA. USCIS has updated the related form to allow individuals previously enrolled in DACA to renew their deferral for a period of two years. As of June 5, USCIS has begun accepting renewal requests.

USCIS will also continue to accept requests for DACA from individuals who have not previously sought to access the program. As of April 2014, more than 560,000 people have enrolled in DACA. Those who have not continuously resided in the United States since June 15, 2007, are ineligible for DACA.

Individuals may request DACA renewal if they continue to meet the initial criteria and:

  • Did not depart the United States on or after August 15, 2012, without advance parole;
  • Have continuously resided in the United States since they submitted their most recent DACA request that was approved; and
  • Have not been convicted of a felony, a significant misdemeanor or three or more misdemeanors, and do not otherwise pose a threat to national security or public safety.

Enrollees may begin the renewal process by filing the new version of Form I-821D, Consideration of Deferred Action for Childhood Arrivals; Form I-765, “Application for Employment Authorization; and the I-765 Worksheet. There is a $465 filing and biometrics (fingerprints and photo) fee for filing the I-765. As with an initial request, USCIS will conduct a background check when processing DACA renewals.

USCIS will host national and local DACA informational sessions.

INFORMATION ON DACA ENGAGEMENTS. Additional information will be forthcoming.

LOCAL ENGAGEMENT LISTINGS.

USCIS’S ANNOUNCEMENT

To learn more about the renewal process or requesting initial consideration of DACA, see http://www.uscis.gov/childhoodarrivals.

NEW I-821D

Initial guidelines for DACA are available in the 2012 MEMORANDUM.

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3. Labor Dept. Extends Transitional Worker Program for Northern Marianas

On June 3, 2014, the U.S. Department of Labor (DOL) extended the transitional worker program for the Commonwealth of the Northern Mariana Islands (CNMI) until December 31, 2019.

In 2008, Congress passed the Consolidated Natural Resources Act (CNRA), which applies the immigration laws of the United States to the CNMI. To minimize potential adverse economic effects, the CNRA provides for a five-year transitional worker program, known as the CNMI-Only Transitional Worker (CW-1) program, which ends on December 31, 2014. Under the CW-1 program, employers in the CNMI can apply for temporary permission to employ foreign nationals who are ineligible for any existing employment-based nonimmigrant category under the Immigration and Nationality Act. The CNRA authorizes the Secretary of Labor to extend this transition period for up to five years based on the labor needs of the CNMI to ensure that an adequate number of workers are available for legitimate businesses.

DOL said it will continue to monitor and assess the labor needs of the CNMI, in particular any good-faith efforts to locate, educate, train, or otherwise prepare U.S. citizens, lawful permanent residents, and unemployed foreign workers already in the CNMI to take jobs in legitimate businesses.

U.S. Citizenship and Immigration Services (USCIS) said it will resume approving CW-1 status in periods of up to one year. There are no changes to the application process or fees for the CW program. Employers must still file Form I-129CW, Petition for a CNMI-Only Nonimmigrant. The timetable for petitioning remains the same: employers may file an I-129CW up to six months in advance. USCIS “encourages employers to file as soon as possible within that time frame to prevent gaps in employment authorization.”

USCIS noted that spouses and minor children of CW-1 workers can obtain CW-2 derivative status. DOL’s CW-1 extension also permits USCIS to grant spouses and minor children CW-2 status for the same duration as the principal CW-1 petitioner whose status is extending beyond, or was granted after, December 31, 2014.

The Department of Homeland Security (DHS) determines the annual numerical limitation on CW-1 workers, as required by the CNRA. DHS set the CW-1 limit for fiscal year (FY) 2014 at 14,000 to meet the CNMI’s existing labor market needs and provide opportunity for potential growth. With DOL’s extension of the CW-1 program, DHS will reassess the CNMI’s labor market needs and opportunity for growth to determine the FY 2015 numerical limitation for CW-1 workers.

DOL’S ANNOUNCEMENT

FEDERAL REGISTER NOTICE

USCIS GUIDANCE

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4. U.S. Consulate in Osaka-Kobe Stops E-1/E-2 Nonimmigrant Visa Appointments for Summer

The U.S. consulate in Osaka-Kobe has announced that it has temporarily stopped accepting
E-1/E-2 nonimmigrant visa appointments through August. During this time frame, E visa applicants, including dependents over the age of 14, must interview at the U.S. embassy in Tokyo or the U.S. consulate in Fukuoka instead. The Osaka-Kobe consulate will continue to process drop-box/mail-in renewal cases as usual. Individuals can also send minor dependent (under the age of 14) cases under the usual mail-in (no-interview) procedures. Companies who are registering for the first time as E visa companies with Osaka may submit their paperwork as usual. The consulate in Osaka-Kobe will contact first-time applicants on an individual basis to set up appointments as needed. The consulate says 10-12 weeks are needed for the processing of these cases. Beginning on September 1, the consulate will resume processing all E applications as usual.

ANNOUNCEMENT (scroll down)

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5. New Publications and Items of Interest

USCIS E-Verify and I-9 Forum. U.S. Citizenship and Immigration Services (USCIS) will hold a forum on Monday, June 23, 2014, from 1 p.m. to 3:30 p.m. (eastern) to discuss the future and present state of E-Verify and the latest information on Form I-9, Employment Eligibility Verification. During this session, Department of Homeland Security and USCIS officials will discuss new program innovations and best practices, and answer questions about employment eligibility verification. Members of the public will share their experiences. Users and non-users will be encouraged to share their comments.

You may attend this engagement either in-person at one of the USCIS offices if you are located in the Washington, DC; Fairfax, Virginia; Charlotte, North Carolina; or Atlanta, Georgia, areas; over the Internet through live Web stream; or by teleconference. Space for attendance in person is limited, so USCIS advises early registration.

REGISTER for in-person or virtual event

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

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6. Member News

Charles Kuck has published several new blog entries. “How To Apply for DACA Renewals” “Why a Corporate Immigration Policy is Important for Every Employer”

Cyrus Mehta has co-authored a new blog entry. “Scialabba v. Cuellar de Osorio: Does the Dark Cloud Have a Silver Lining?”

Angelo Paparelli has published a new blog entry. “The Immigration Pony in Eric Cantor’s Defeat”

Stephen Yale-Loehr was interviewed on CCTV-America, the U.S. branch of China’s state news network. The clip at the first link below concerns the prospects for immigration reform this year. The second clip concerns relations among Mexico, the United States, and Canada regarding immigration.

Below are links to the clips; each is about 4 minutes:

http://youtu.be/Wd98wLSyGIA

http://youtu.be/qstQemWj5xQ

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News from the Alliance of Business Immigration Lawyers Vol. 10, No. 6A • June 01, 2014

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Headlines:

1. OCAHO Launches E-Filing Pilot, Rules That E-Verify Participation Does Not Provide Blanket Protection – OCAHO has launched a voluntary pilot program to test an electronic filing system in certain cases. Also, an employer argued that participation in E-Verify entitled it to a presumption that it had not violated the law, but OCAHO ruled that E-Verify provides no such blanket protection.

2. USCIS Limits Validity Period for Report of Medical Examination/Vaccination Record – As of June 1, 2014, USCIS is now limiting the validity period for Form I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS.

3. USCIS Extends TPS Re-Registration Period for Haitians – DHS has extended the re-registration deadline to July 22, 2014, for Haitian nationals who have already been granted temporary protected status and seek to maintain that status for an additional 18 months. USCIS strongly encourages Haitian TPS beneficiaries to apply as soon as possible.

4. Corporate Immigration Policies: A Survey – The Alliance of Business Immigration Lawyers surveyed its members on the topic of Corporate Immigration Policies, such as: (1) how long a FN employee would have to work for the company before sponsorship would be started; (2) whether that timing has changed since the height of the financial crisis; and (3) whether there are contingencies on initiating/continuing the green card sponsorship process.

5. ABIL Global: Germany – Germany has become the world’s top migration spot after the United States.

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. OCAHO Launches E-Filing Pilot, Rules That E-Verify Participation Does Not Provide Blanket Protection

E-filing pilot. The Department of Justice’s Office of the Chief Administrative Hearing Officer (OCAHO) has launched a voluntary pilot program to test an electronic filing system in certain cases filed with OCAHO under 8 U.S.C. § 1324a and b.

The pilot program began on May 30, 2014, and will run until November 26, 2014. Under the pilot, filing with OCAHO and service on other parties can be accomplished by email in eligible cases. OCAHO said it is undertaking this temporary testing initiative in an effort to make submission of case documents more convenient and to reduce the time and expense incurred in paper filings.

The Federal Register notice describes the procedures for applying for and participating in the pilot program.

Ruling: E-Verify participation does not provide blanket protection. In a recent case, an employer argued that participation in E-Verify entitled it to a presumption that it had not violated the law, but OCAHO ruled that E-Verify provides no such blanket protection.

OCAHO noted that the employer, Golf International d/b/a Desert Canyon Golf, had failed to ensure that various employees properly completed I-9 employment authorization verification forms. Golf contended that the violations were technical, but OCAHO found them to be substantive. Among other things, section 2 was blank for 93 employees, and signatures were missing in section 2 for 14. Several employees checked a box indicating permanent resident status but failed to provide their A numbers.

OCAHO noted that “[a]n employer’s first responsibility in [the E-Verify] program is, in fact, to properly complete an I-9 form for each new employee. As [U.S. Immigration and Customs Enforcement] points out, the E-Verify Memorandum of Understanding that must be signed by a participating employer provides that ‘The Employer understands that participation in E-Verify does not exempt the Employer from the responsibility to complete, retain, and make available for inspection Forms I-9 that relate to its employees.’ ”

DECISION

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2. USCIS Limits Validity Period for Report of Medical Examination/Vaccination Record

As of June 1, 2014, U.S. Citizenship and Immigration Services (USCIS) is now limiting the validity period for Form I-693, Report of Medical Examination and Vaccination Record, to one year from the date of submission to USCIS. Applicants must also submit the I-693 to USCIS within one year of the immigration medical examination. USCIS said it will provide additional ways to submit an I-693. This updated policy applies to any I-693 supporting a benefit application that USCIS adjudicates.

USCIS permits filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, without the medical report. USCIS will issue a request for evidence for the report, which will be valid for submission within one year of the civil surgeon’s signature and valid for one year from submission. Although the medical examination report is generally valid for adjudicatory purposes up to one year after filing, the officer may order an additional immigration medical examination at any time if he or she has concerns about an applicant’s inadmissibility on health-related grounds. The medical examination report may be submitted to USCIS concurrently with the immigration benefit application, or at any time after filing the application but before adjudication. If not filed concurrently with the application, USCIS “encourages applicants to wait until USCIS requests the medical examination report before submitting it.” This includes a request to bring the medical examination report to the interview.

USCIS will hold an engagement on Thursday, June 12, 2014, to address questions about the new policy and provide guidance on filing Form I-693. The agency also has updated the I-693 webpage.

ANNOUNCEMENT

ANNOUNCEMENT

POLICY MANUAL

UPDATED I-693 WEBPAGE

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3. USCIS Extends TPS Re-Registration Period for Haitians

The Department of Homeland Security (DHS) has extended the re-registration deadline to July 22, 2014, for Haitian nationals who have already been granted temporary protected status (TPS) and seek to maintain that status for an additional 18 months. USCIS strongly encourages Haitian TPS beneficiaries to apply as soon as possible.

DHS began accepting re-registration applications on March 3, 2014, from TPS Haiti beneficiaries when DHS announced an 18-month extension of the TPS designation for Haiti from July 23, 2014, through January 22, 2016.

Approximately 51,000 TPS Haiti beneficiaries are expected to file for re-registration. TPS is not available to Haitian nationals who have not continuously resided in the United States since January 12, 2011.

DHS also automatically extended by six months, through January 22, 2015, the validity of employment authorization documents (EADs) for eligible Haitian TPS beneficiaries. USCIS said this would allow sufficient time for eligible TPS beneficiaries who re-register on time to receive an EAD without any lapse in employment authorization.

To re-register, TPS beneficiaries must submit Form I-821, Application for Temporary Protected Status, and Form I-765, Application for Employment Authorization. Individuals seeking to re-register do not need to pay the I-821 application fee. However, all re-registrants 14 years of age and older must pay a biometric services fee or submit a fee waiver request. All re-registrants seeking employment authorization through January 22, 2016, must also submit the I-765 fee (or a fee-waiver request). Re-registrants who do not want employment authorization must still submit a completed I-765 but do not need to submit the I-765 fee.

REVISED I-821

ANNOUNCEMENT, with additional related links

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4. Corporate Immigration Policies: A Survey

Many companies hire Foreign National (FN) employees, especially in the science, technology, engineering, and mathematics disciplines. Many of these FNs have been sponsored by their employers to work pursuant to nonimmigrant (temporary) work visas. Such visas often limit the amount of time the FN may remain in the United States and impose other restrictions on them (i.e., limits on the ability to change jobs and /or change employers, and prohibiting spouses on dependent visas from securing work authorization). Although the American Competitiveness in the 21st Century Act (AC21) has mitigated some of these hardships for FNs sponsored under the H-1B category, significant challenges remain.

FN employees on nonimmigrant work visas are therefore often anxious to start the employment-based green card process. Their options to obtain green cards through other avenues are limited under current immigration laws. The timing for initiating the green card process is also vital, as it would enable extensions of the H-1B work visa beyond the maximum six-year limit under AC21. Given that the usually required PERM labor certification process can take two years to complete if an audit is required, waiting significantly more than a year can lead to serious complications in completing the green card process.

Earlier this year, the Alliance of Business Immigration Lawyers surveyed its members on the topic of Corporate Immigration Policies. The survey requested information from ABIL member firms regarding their corporate clients’ policies on such topics as: (1) how long a FN employee would have to work for the company before sponsorship would be started; (2) whether that timing has changed since the height of the financial crisis; and (3) whether there are contingencies on initiating/continuing the green card sponsorship process.

ABIL members concluded that the survey results would interest companies that hire FN employees, including those who have a policy in place as well as those that do not. Below are highlights of the key findings of the survey:

  1. The majority of ABIL members who responded to the survey (66%) reported that their client companies wait one year before starting the green card process. The next highest percentage responded that their clients wait more than one year; the third highest reported a wait of six months.
  2. When asked whether this time frame changed since the height of the financial crisis, an equal percentage of respondents reported that the wait time had shortened as those responding that there was no change to the wait time.
  3. When asked about contingencies on starting (or continuing) the process, over 80% of respondents stated that the employee’s manager must “sign off” to have the process initiated. One-half of respondents stated that an employee on a performance plan or under some other disciplinary action would cause the process to be delayed or stopped. One member reported that some client companies have “nomination periods” when managers can nominate certain employees for green card sponsorship.
  4. When asked about the payment of green card sponsorship, most members (over 80%) reported that the employer pays all fees and expenses in connection with sponsorship. The next highest percentage reported that the employer pays all fees for the employee but requires the FN employee to pay costs related to family members. The smallest percentage reported that the employer pays up to a certain amount toward the process and the employee covers the balance.
  5. When asked about the source of immigration-related costs, the largest percentage (over 90%) reported that the business unit hiring the employee pays for the process. A few respondents reported situations where the legal or human resources department pay.
  6. Responses varied with respect to reimbursement policy. An equal number of ABIL members reported that their corporate clients had no reimbursement policy as those who reported that their clients had such a policy (where the employee agrees to repay a portion of the costs of sponsorship if the employee leaves the company within a certain time frame after receiving the green card).

Under federal regulations, the employer is responsible for all fees and costs associated with the PERM labor certification process—the first step in the majority of employment-based green card cases—and such fees may not be reimbursed by the employee.

More and more companies are finding that a corporate immigration policy is a useful tool, and that having no policy or a restrictive policy can lead to inconsistencies that can present significant challenges. From the threat of key employees resigning to take up employment with more “FN-friendly” employers to the risk of litigation, prudent employers should consider reviewing their existing policy or adopting a new one.

For companies that determine a corporate immigration policy is beneficial, the results of the ABIL survey will shed light on how many employers approach the topic.

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5. ABIL Global: Germany

Germany has become the world’s top migration spot after the United States.

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). By contrast, Germany has a very strong economydespite the global economic crisis. 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 attractive. 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 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.

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.

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6. New Publications and Items of Interest

SEVIS report on international students in the United States. The Student and Exchange Visitor Program (SEVP) has released “SEVIS by the Numbers,” a quarterly report of international students studying in the United States. The report is based on data from the Student and Exchange Visitor Information System (SEVIS), a Web-based system that includes information on international students, exchange visitors, and their dependents while they are in the United States.

The report notes that as of April 1, 2014, almost 1.02 million international students were enrolled in nearly 9,000 U.S. schools on F (academic) or M (vocational) visas. This marks a 2 percent increase from January. Seventy-five percent of all international students were from Asia, with 29 percent from China. Saudi Arabia and India had the greatest percentage increase of students studying in the United States at 10 and 8 percent, respectively, when compared to January statistics. The top 10 countries of citizenship for international students were China, India, South Korea, Saudi Arabia, Canada, Japan, Taiwan, Vietnam, Mexico and Brazil.

The April report also includes statistics on STEM (science, technology, engineering, and mathematics) students. Sixty-seven percent of international students studying STEM fields were male. Forty-three percent of all international STEM students studied engineering. Seventy-eight percent of international students from India studied STEM fields, while only eight percent of international students from Japan studied STEM fields.

Other key points from the report include: 77 percent of SEVP-certified schools had between 0 and 50 international students; 72 percent of international students were enrolled in bachelor’s, master’s, or doctoral programs; and California, New York, and Florida had the most SEVP-certified schools. A school must be SEVP-certified before it can enroll international students.

REPORT

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

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7. Member News

ABIL members have been appointed to the following American Immigration Lawyers Association committees:

  • Vincent Lau is on the Department of Labor Liaison Committee.
  • Sharon Mehlman will continue as the Vice Chair of the Verification and Worksite Enforcement Committee and will chair the 2015 Annual Conference committee (DC National Harbor).
  • Bernard Wolfsdorf has been re-appointed to the EB-5 Committee.
  • Stephen Yale-Loehr has been re-appointed to the Business Immigration Committee.

Several ABIL members will speak at the upcoming American Immigration Lawyers Association Annual Conference to be held June 18-21, 2014, in Boston, Massachusetts (PROGRAM):

  • Bryan Funai and Mr. Wolfsdorf will speak on E-1/E-2 Visas Treaty Rights and Wrongs.
  • Kehrela Hodkinson will speak on What Business Immigration Attorneys Need to Know About Nonimmigrant Visa Inadmissibility Issues.
  • H. Ronald Klasko will speak on Representing the Direct EB-5 Investor.
  • Charles Kuck will speak on Expecting a Visitor: Lessons Learned from FDNS and USCIS Site Visits.
  • Mr. Lau will speak on Hazard: Falling (PERM) Rocks Ahead.
  • Ms. Mehlman will speak on What Would You Do? A Practical Discussion of Advanced and Challenging I-9 Issues.
  • Cyrus Mehta will speak on Abandonment of Residence, Expatriation, and Renunciation of U.S. Citizenship.
  • Angelo Paparelli will speak on Top Mistakes in Employment-Based Practice, Version 2014.
  • Mr. Wolfsdorf will present the keynote address on Bringing Economic Liberty and Certainty to Global Migration at the AILA Global Migration Spirit of Boston Sunset Networking Dinner Cruise on June 17, 2014. He will also present an “EB-5 Investor’s Workshop” for the AILA New Members Division on June 19, 2014.

Klasko, Rulon, Stock & Seltzer, LLP has moved to 1601 Market Street #2600, Philadelphia, PA 19103; phone: (215) 825-8600. For more information, see http://www.klaskolaw.com/.

Robert Loughran spoke on the future of America’s EB-5 program at the Global Residency and Citizenship Conference in Malta.

Mr. Paparelli has published a new blog entry. “Immigration Voices: Dr. No vs. the League of Extraordinary Aliens”

Mr. Wolfsdorf will moderate a panel on June 17, 2014, at Harvard Law School celebrating the 30th anniversary of the Harvard Immigration and Refugee Clinical (HIRC) Program celebration.

Mr. Yale-Loehr will speak on I-829 issues at an EB-5 conference sponsored by ilw.com in Boston on Wednesday, June 18, 2014. DETAILS AND REGISTRATION INFORMATION.

Mr. Yale-Loehr will speak at a luncheon panel sponsored by CanAm Enterprises, “The EB-5 Program: The Certainty of Unpredictability,” on Thursday, June 19, 2014, from noon to 1:15 pm at the Westin Copley Place in Boston.

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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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