CANADA: New Requirements for Specialized Knowledge Workers

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Employers applying for work permits under the intra-company transfer stream (labour market opinion [LMO] exemption) must provide evidence of a qualifying relationship between the Canadian and foreign employer and evidence of the existence of a qualifying relationship between the employer and the temporary foreign worker. Additionally, the prospective temporary foreign worker must qualify under one of the following occupational categories: Executives and Senior Managers, Functional Managers, or Specialized Knowledge Workers.

For each intra-company transfer occupational category, a temporary foreign worker must meet specific qualifications for this LMO exemption. In the past, qualifying for the Specialized Knowledge Worker category required the temporary foreign worker to demonstrate specialized knowledge that was unique or to possess an advanced level of knowledge or expertise in the organization’s processes and procedures. Typically, a Specialized Knowledge Worker would hold a position critical to the well-being of the enterprise, while not necessarily being responsible for managing employees or possessing a budgetary responsibility.

“Specialized knowledge” was previously defined as “unusual and different from that generally found in a particular industry.” Advanced knowledge is defined as a complex or high level of knowledge that is not necessarily unique or known by a few individuals (or proprietary). Other factors that were considered included under which National Occupational Classification (NOC) code the position qualified, education, experience, salary, and the amount of training that would be required for a position that requires specialized knowledge.

Effective June 9, 2014, temporary foreign workers must meet new requirements to qualify under the specialized knowledge intra-company transfer LMO exemption. Now, temporary foreign workers must demonstrate a high degree of both proprietary knowledge and advanced expertise. Specialized knowledge is considered to be knowledge that is unique and uncommon. The onus is on the employer to demonstrate that the temporary foreign worker’s specialized knowledge and temporary employment in Canada will play a key role in the Canadian company’s competitiveness in the marketplace.

Additional new requirements under this LMO exemption category include the Canadian company’s mandatory direct employment and supervision of the temporary foreign worker. The Canadian company should provide training to the specialized worker. The specialized knowledge worker may not receive any training by other employees of the Canadian company that would lead to the displacement of Canadian workers.

Finally, to qualify as a specialized knowledge worker, the employee must be paid the prevailing salary wage for the position’s corresponding NOC code (dependent on location), as determined by the government’s working wage website. This new requirement is based on the belief that an individual who possesses specialized knowledge should earn a salary that is consistent with such work. Therefore, the worker is entitled to the prevailing wage and generally receives an above-average salary for that position. Non-cash per diem payments for costs such as hotel and transportation are not considered as part of the overall salary calculation.

These new policy changes dramatically toughen this category and mean that many specialized knowledge professionals will no longer qualify for work permits to Canada. The new requirements are a blow to Canadian businesses relying on the specialized category for short-term transfers, client-requested integration or standardization specialists, secondments, and short-term work sharing and/or exchange programs.

ABIL Members Published Country-by-Country Comparison of Immigration Benefits for Same-Sex and Domestic Partners

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ABIL Members published an overview of immigration benefits for same-sex and/or domestic partners in various countries. This article provides an overview of immigration benefits available for same-sex spouses and/or domestic partners in fifteen countries. The article is limited to immigration-related issues and does not cover the situation of lesbian, gay, bisexual, or transgender individuals in each country more generally.

Belgium

Belgium legalized same-sex marriage in 2003. Belgium family reunification rules apply equally to all couples without regard to the gender of the two individuals.

Spouses of third-country business migrants in Belgium may accompany and live with their spouses, provided that both spouses are older than twenty-one years, or, if they were already married before the arrival of the business migrant, older than eighteen years. Unmarried partners of third-country business migrants with a “registered” partnership considered equivalent to a Belgian marriage will be treated the same (only “registered” partnerships performed in Denmark, Finland, Germany, Iceland, Norway, Sweden, and the United Kingdom qualify).

Belgium’s family reunification rules also provide for unmarried “non-registered” partners and common-law spouses, and apply without regard to the gender of the two individuals. Specifically, unmarried, “non-registered” partners and common-law spouses of third-country business migrants from outside the European Union/European Economic Area may accompany and live with their significant others in Belgium, provided that:

  • they are not involved in a marriage or partnership with any other person;
  • they sign a registered partnership together in Belgium;
  • they are able to demonstrate that they have a long-lasting and stable relationship with one another, established by furnishing evidence of prior legal cohabitation (at least one uninterrupted year, in Belgium or abroad); or the existence of either a bona fide relationship (the partners prove that they have known one another for at least two years, have had frequent contact (by phone, mail, or e-mail), have met at least three times over the last two years, and these meetings covered at least forty-five days in total), or that they have a common child; and
  • they are older than twenty-one years or, if they have already cohabited at least one year before the arrival of the business migrant in Belgium, older than eighteen years.

Brazil

On February 18, 2014, effective as of March 20, 2014, the National Council of Immigration published Normative Resolution No. 108, changing the rules for granting visas for dependents (the so-called “family reunion visa”), and cancelling NRs 36 and 77, which until now regulated the subject.

The main changes introduced were with respect to visas for common-law partners (irrespective of gender), which may now be applied for directly at the Brazilian consulate abroad or at the Federal Police in Brazil, without the need to go through the National Council of Immigration. This rule now applies to all types of family reunion visas and irrespective of whether they are on a temporary or permanent basis.

Another main change is that when there is no official document issued by the government/court attesting to the existence of the common-law partnership, this may now be proven through one of the following documents, rather than two as were required before: (i) evidence of dependence issued by a tax authority or by a department corresponding to the Brazilian Federal Revenue Service; (ii) a certificate of religious marriage; (iii) testamental provisions registered at a Brazilian Notary or at the competent foreign authority, proving the existence of the partnership; (iv) a life insurance policy or health plan, in which one of the parties appears as establisher of the insurance/plan and the other party as beneficiary; (v) a deed of purchase and sale of real estate, duly registered in the Property Registration Office, in which both parties appear as owners, or a rental agreement in which both parties appear as lessees; or (vi) a joint bank account.

Also, a foreign birth certificate of a common child of the partners is now accepted as proof of a common-law partnership. If there is a common Brazilian child, then the visa to be applied for is a permanent visa based on a Brazilian child rather than a visa based on the common-law partners. The acceptance of the health plan as proof of the common-law partnership is another change introduced by NR-108.

There is no citizenship requirement to get married in Brazil.

Canada

Immigration Benefits for Same-Sex Partners

Since the entry into force of Canada’s Immigration and Refugee Protection Act (IRPA) in 2002, replacing the Immigration Act, 1976, same-sex rights have become enshrined in Canadian immigration law.

Same-sex marriages are recognized for Canadian immigration purposes in any jurisdiction where they are currently legal. Canadian marriage laws have been gender-neutral since 2005. In addition, Canadian citizens and permanent residents may sponsor their spouses, common-law partners, and conjugal partners, as applicable, for the family-class permanent immigration category without regard to the gender of that spouse, common-law partner, or conjugal partner. Applicants in the economic-class immigration category can include their same-sex spouses or common-law partners as dependents in their applications regardless of gender. Also, spouses and common-law partners of a Canadian work permit or study permit holders may apply for an open work permit irrespective of whether they are in a same-sex or different-sex relationship, subject to certain conditions.

Immigration Benefits for Domestic Partners

In Canadian immigration law, domestic partners are known as “common-law partners.” A “common-law partner” is defined in subsection 1(1) of the Immigration and Refugee Protection Regulations as an individual cohabiting with a person in a conjugal relationship for at least one year. For Canadian immigration purposes, common-law relationships are considered to be marriage-like relationships characterized by mutual commitment, exclusivity, and interdependence.

Common-law relationships must be factually demonstrated to Citizenship and Immigration Canada (CIC) based on documents proving cohabitation for a continuous period of at least one year and documents proving interdependence, such as documentation regarding joint ownership of property, joint travel, or photographs of the couple. Conjugal partners are recognized as common-law partners in Canadian immigration law where, due to very exceptional circumstances such as persecution, they have been precluded from cohabiting together for a period of at least one year.

As with married spouses, common-law partners may sponsor their common-law partners and include their common-law partners as dependents on other permanent immigration applications. Similarly, common-law partners are eligible for open spousal work permits subject to certain conditions, provided that they submit sufficient evidence to substantiate their common-law relationship. Common-law partners enjoy equal rights as married spouses pursuant to Canadian immigration law but are subject to a higher evidentiary burden in terms of proving their relationship to CIC.

China

China does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. There is currently no way around these restrictions.

France

General provisions relating to marriage from the law of May 17, 2013, conflict of laws, and consular marriage. France’s Civil Code now recognizes both same-sex and different-sex marriages. Article 202-1 of the Civil Code provides that the personal law of each spouse governs the conditions for marriage, but then Article 202-2 provides that two persons of the same sex can marry when the personal law or the law of the state of residence of one spouse permits. This arrangement allows avoidance of the application of the personal law of one spouse prohibiting marriage between persons of the same sex when the marriage took place in the territory of a state recognizing marriage between persons of the same sex.

The above implies, for the Constitutional Council, that two foreigners of the same sex can marry when one of them resides or is domiciled in France. However, this rule does not apply to nationals of countries with which France is bound by bilateral agreements (Poland, Algeria, Tunisia, Morocco, republics of the former Yugoslavia, Cambodia, and Laos), which provide that the law governing conditions for marriage is the personal law. The marriage, however, may take place in a non-prohibitive state having no bilateral agreement with the country of the spouses.

Foreign nationals frequently may find themselves in situations where their countries of origin do not recognize their marriages in France unless those countries have adopted legislation similar to the new French legislation.

A consular marriage between same-sex French nationals does not raise issues. However, a consular marriage between a French national and a foreign national may be more complex in consular posts in prohibiting countries (which are in the majority). In such case, the Civil Code provides that the marriage may take place in France.

The law of May 17, 2013, also provides that marriages between same-sex couples may be recognized retroactively if they were validly celebrated abroad at a time when French law forbade such marriages.

The impact on French immigration rights of foreign nationals moving to France. Marriage now carries the same effects, rights and obligations whether between persons of different sex or the same sex.

  • Derivative residency and work rights known as “accompanying family rights” are applicable to married foreign workers under Inter-Company Transfer, EU Blue Card, or Skills and Talents status, regardless of the gender identity of the spouses when the marriage is celebrated in France or recognized by France (marriage between two foreigners) on the basis of the new provisions of the Civil Code and Article L313-11-3 CESEDA.
  • The same sex marriage between foreign national and a French national will allow the issuance of a visa and residence permit to the foreign national as the spouse of French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.
  • The marriage between of a third country foreign national in European Union with a European citizen is expected to allow the issuance of a residence permit as a European spouse under Articles L121-3 to L121 -5 CESEDA.

Recognition of marriage for same-sex couples could also give rise to new legal actions when a decision refusing stay maybe considered as disproportionate interference with rights to private and family life, under Article 8 of the European Convention on Human Rights.

Domestic partners however will not enjoy the same immigration rights as same-sex married couples. Even domestic partners who contract the French form of domestic partnership agreement (PACS) will not qualify for “accompanying family rights”.

Hong Kong S.A.R.

In a landmark decision on July 4, 2018, the Court of Final Appeal, Hong Kong’s highest court, ruled that the Hong Kong Immigration Department must issue a dependent visa to a same sex partner for immigration purposes. Accordingly, while the definition of a “marriage” as between a man and a woman under Hong Kong Law remains unchanged, the marriage status and a civil union partnership of same-sex couples entered into in a jurisdiction which recognizes such relationships are now recognized in Hong Kong for the purpose of applying for a dependent visa if the other partner holds permanent resident status or an employment visa.

The ruling was welcomed by a host of global financial institutions, law firms, executive search firms and other businesses as this ruling strengthens Hong Kong’s ability to attract global talent and its competitiveness as recruiting and relocating talent to Hong Kong had sometimes been hampered because of the immigration restrictions of same sex couples.

India

Indian law does not recognize same-sex marriages and considers gay sex a criminal offense. No provisions in Indian law provide for immigration benefits to same-sex spouses or partners. Section 377 of the Indian Penal Code (IPC), an archaic law, was introduced in 1861 during British rule in India. It criminalized “carnal intercourse against the order of nature with any man, woman or animal” with a maximum sentence of life imprisonment.

The struggle to strike down section 377 of the IPC as unconstitutional has been a long one, spearheaded by activists from non-governmental organizations (NGOs) fighting for the rights of the lesbian, gay, bisexual, and transgender (LGBT) community. On July 2, 2009, a historic judgment decriminalizing homosexuality was passed by the Delhi High Court in favor of Naz Foundation, an NGO working in the fields of HIV/AIDS intervention and prevention and for the rights of the LGBT community. An appeal was filed challenging this decision in the Supreme Court of India. On December 11, 2013, the Supreme Court reversed the decision of the Delhi High Court, thereby criminalizing homosexual intercourse between consenting adults. The Supreme Court shifted the onus onto Parliament to decide whether to repeal the provision, arguing that the courts could not make such decisions under the existing laws. The Supreme Court further observed that there was “no constitutional infirmity” in the section 377 law. This judgment has sparked widespread condemnation throughout India and internationally, and has been criticized as regressive.

However, there have been isolated incidents and trends worth reporting. In November 2013, a senior Indian Foreign Service officer was demoted from her post in the Ministry of External Affairs (MEA) passport and visa division for refusing a visa for the same-sex spouse of a U.S. diplomat. She refused the visa on the ground that same-sex marriages are not legal in India and the diplomat’s spouse could not therefore be granted a diplomatic visa and recognized as a “spouse” in India. A senior official in the MEA’s American division suggested that although there is no rule in India allowing visas for gay couples, the diplomat’s partner could be given a visa as a family member as it had been done in the past. On the other hand, in light of India’s opposition to the arrest of its Deputy Consul General in New York, one politician from the Bhartiya Janata Party has suggested that the same-sex spouses or partners of U.S. diplomats be prosecuted under section 377 as a retaliatory measure.

Until recently, Indian law did not recognize relationships between domestic, live-in (opposite-sex) partners. On June 17, 2013, the Madras High Court held that for a valid marriage, all customary rights need not be followed and subsequently solemnized. As long as the couple is not disqualified by law from marrying each other, and a third party’s rights are not affected, the couple can be declared to be spouses by the court. This declaration would be on the basis of whether they have had a sexual relationship. The court held that if a woman age 18 and above, and a man age 21 and above, have a sexual relationship, they will be treated as husband and wife, especially if the woman becomes pregnant. Even if the woman does not become pregnant, if there is “strong documentary evidence to show existence of such relationship,” they will still be termed “husband” and “wife.” However, this ruling only applies to the state of Tamil Nadu and cannot be enforced elsewhere in India.

In a recent judgment of November 26, 2013, the Supreme Court of India dealt with the issue of live-in relationships, but that was within the purview of the Domestic Violence Act 2005 (DV Act, 2005). The Supreme Court held that a “live-in relationship” would not amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship” under Section 2(f) of the DV Act, 2005 if the woman in such a relationship knew that her male partner was already married. All live-in relationships are not relationships in the nature of marriage, but they can still come within the ambit of the DV Act, 2005. The judgment was delivered by a Division Bench of Justices KS Radhakrishnan and Pinaki Chandra Ghose in an appeal filed by Indra Sarma (Appellant) against the decision of the Karnataka High Court. This ruling only applies to domestic partners of the opposite sex, not to same-sex partners, in view of the recent decision of the Supreme Court in the Suresh Kumar Koushal case.

As these issues are very recent and path-breaking in Indian law, there has been no recognition thus far of same-sex partnerships or domestic relationships with respect to Indian immigration. The Indian government filed a review petition in the Supreme Court on December 20, 2013, challenging the earlier judgment upholding section 377, stating, “Section 377 IPC, insofar as it criminalizes consensual sexual acts in private, falls [afoul] of the principles of equality and liberty enshrined in our Constitution.” Following the government’s review petition, Naz Foundation also filed a review petition in the Supreme Court challenging its decision. On January 28, 2014, however, the Supreme Court dismissed the petitions seeking review.

Italy

A same-sex spouse of a European Union (EU) national may apply for a five-year permit to stay in Italy, provided the marriage was entered into in a country where same-sex marriages are validly performed. Italian immigration offices are now increasingly approving these applications. Same-sex marriage is not legal in Italy.

Domestic partnerships are not recognized by Italian law and the immigration system does not provide any option for them.

Japan

Japan does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. The same-sex spouse or partner can try to apply for a dependent visa and the case will be referred to the Ministry of Foreign Affairs in Japan, which can grant the visa, but the chances of a visa being approved on that basis are extremely low.

Mexico

On December 21, 2009, the legislative assembly in Mexico City, D.F., legalized same-sex marriage and accorded adoption rights to same-sex parents. It was the first city in Mexico and in Latin America to legalize same-sex marriages. These reforms in the capital’s civil law have spread to other entities in Mexico.

The Migration Act of November 2012 established regulations for domestic partners to obtain Mexican visas on the basis of their bonds with Mexicans or foreign residents in Mexico.

The requirements for domestic partner visas in Mexico are similar to those for different-sex married couples, but with more stringent requirements. While same-sex married couples are treated as domestic partners for Mexican immigration purposes, same-sex unmarried couples will only qualify if they have proof of their partnership in the country of origin.

Netherlands

In the Netherlands, there is no legal difference between a same-sex marriage and a different-sex marriage.

Unmarried partners, regardless of gender, fulfill the criteria for family reunification if they both prove, by official (and legalized) documents, that they are unmarried. In addition, they must prove that they have a long-lasting and stable relationship. This means that the relationship has to be comparable to a marriage. To prove the existence of such a relationship, the partners must complete and sign two forms, the so-called relationship statement and a questionnaire that asks questions like how they met, how long they have been in the relationship, and whether their family members have been informed about their relationship. The legislation does not define a minimum period of time the relationship must have existed.

For marriages and “registered” partnerships (similar to “registered” partnerships in Belgium, discussed above), the criteria for family reunification are very similar. Married couples or registered partners have to prove their marriage or registered partnership with official (and legalized) documents.

The minimum age to apply is twenty-one years, and the person who applies for reunification with his or her partner or spouse must earn at least the minimum wage.

Peru

Peru does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes. Only marriages according to Peruvian civil law and related regulations are recognized for purposes of obtaining resident visas through family-based proceedings.

Russia

Russia does not recognize marriages, partnerships, or relationships between two individuals of the same sex for immigration purposes.

South Africa

South African immigration law gives effect to the requirement of its Constitution that a person may not be discriminated against on the basis of his or her sexual orientation. That protection applies whether the person is a foreign national or a South African citizen.

The term “spouse,” for purposes of South African immigration law, describes a person who is in a spousal relationship, be he or she in a marriage, a civil union, or an informal life partnership. Legislation does require, however, that any previous marriage or civil union must have been lawfully terminated. The relationship must be monogamous.

The foreign spouse of a South African citizen is eligible to apply to the Department of Home Affairs for a temporary residence permit to accompany his or her South African spouse in South Africa. These “relative’s permits” are usually issued for about two years at a time. A relative’s permit may be extended (from within the country), upon application, so long as the relationship still exists. Once the spousal relationship is five years old, the foreign spouse may apply for permanent residence on the basis of the relationship.

If the foreign spouse has obtained an offer of employment, he or she may apply to have the permit amended to allow him or her to take up that employment.

When a foreign national is moving to South Africa for some lawful purpose, he or she may bring a spouse or partner regardless of that spouse or partner’s gender. The “accompanying spouse” must (principally) prove that the spousal relationship exists. Unfortunately, the “dispensation” allowing a foreign spouse to take up employment in South Africa applies only to the spouses of South African citizens.

United States

On June 26, 2013, the U.S. Supreme Court struck down Section 3 of the Defense of Marriage Act (DOMA). DOMA defined “marriage” for federal law purposes as between “one man and one woman” and “spouse” as either a husband or wife “of the opposite sex.” As a result of the Supreme Court’s decision, same-sex spouses of U.S. citizens and permanent residents are now treated the same as different-sex spouses at the federal level, and may apply for green cards based on their marriages. Absent fraud or a particular public policy consideration, and as long as the marriage was valid where and when performed, the marriage is valid for U.S. immigration purposes. Moreover, U.S. immigration officials have been directed to recognize a validly performed same-sex marriage regardless of any anti-marriage equality law or constitutional amendment in a couple’s state of residence (or intended residence) in the United States.

As of press time, same-sex marriages are legally performed in eighteen states and the District of Columbia. The states include California, Connecticut, Delaware, Hawaii, Illinois (starting June 2014), Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Utah (from December 20, 2013, to January 6, 2014, only) Vermont, and Washington.

Outside of the United States, same-sex marriages are validly performed in sixteen countries: the Netherlands, Belgium, Spain, Canada, South Africa, Norway, Sweden, Portugal, Iceland, Argentina, Denmark, Brazil, France, Uruguay, New Zealand, the United Kingdom (effective later this year in England, Wales, and Scotland only), and in Mexico City, D.F.

Overall, U.S. immigration authorities are treating all married couples equally in both the immigrant and nonimmigrant contexts, albeit not without a few growing pains along the way. For example, while U.S. Customs and Border Protection (CBP) honors visas issued by the U.S. Department of State (DOS) to same-sex spouses of principal nonimmigrant workers (e.g., an H-4 visa as the spouse of an H-1B nonimmigrant worker), CBP officers are refusing to issue derivate nonimmigrant status to Canadian citizens applying for admission to the United States (Canadians generally do not require visas) as the same-sex spouse of a principal nonimmigrant, and have confirmed that they will not do so without “additional guidance.”

Importantly, however, civil unions, domestic partnerships, and other forms of relationship recognition short of marriage are not accorded the same familial status as marriage under U.S. immigration law. DOS will issue a B-1/2 visa to a “cohabitating partner” of a principal nonimmigrant visa holder, but these will only allow the “cohabitating partner” to obtain a six- to twelve-month stay upon entry, whereas the principal nonimmigrant may be on temporary assignment to the United States for several years at a time.

Details with respect to immigrant and nonimmigrant visas are summarized below.

Immigrant visas:

Same-sex spouses are recognized for immigration purposes, provided the marriage was recognized by the state where it was performed. If the party resides in a state that does not recognize the marriage, but it was valid where performed, it will be recognized for immigration purposes. This is a dramatic turnaround from the position taken before June 2013 and results from administrative application of the Supreme Court’s decision in Windsor v. United States, 570 U.S. 12 (2013). Practitioners report that qualifying same-sex cases are being adjudicated for immigration benefits professionally.

Same-sex partners or those in a domestic relationship enjoy no immigrant visa benefits. However, they may be able to visit under a B-2 visa for an extended period. If one partner is a U.S. citizen or permanent resident, this would raise the issue of whether the non-U.S. partner is a bona fide nonimmigrant. This might be overcome where the U.S. partner can show that he or she is only in the U.S. temporarily or travels frequently.

Nonimmigrant visas:

Nonimmigrant options for partners who are not legally married:

Same-sex or different-sex partners who are not legally married, whether or not they are in a legally recognized domestic partnership, may qualify for a B-2 visitor’s visa to accompany a nonimmigrant partner, provided they can demonstrate the normally required intent not to immigrate or overstay in the United States. The primary purpose of coming to the United States must be to accompany the significant other who has already demonstrated nonimmigrant intent in obtaining his or her own visa, whether it be as a visitor, student, temporary worker, or other nonimmigrant classification. In making the assessment, U.S. immigration authorities will consider the current circumstances and prospects in the home country upon return, as well as the strength of his or her relationship with the “principal” alien and the principal’s own ties abroad.

The principal applicant may be exempt from having to document nonimmigrant intent under an H or L visa or from having to document a residence abroad under an A, E, G, I, O, or R visa classification. The accompanying B-2 visitor partner, however, must show nonimmigrant intent and a residence abroad, whether it is his or her own address or that of a relative or friend.

Nonimmigrant options for same-sex spouses:

Same-sex spouses or partners may enjoy the full benefits of a K-1 fiancé(e) visa or as a derivative of other visa classifications such as B-2 visitor or H-4 spouse of temporary worker. They face the issue of immigrant intent much the same as a domestic partner. As with immigrant marriages, the marriage must have been recognized in the jurisdiction where performed. Whether it is recognized in the jurisdiction where the party resides is not determinative.

United Kingdom

In the United Kingdom (UK), a law legalizing same-sex marriage in England, Wales, and Scotland was passed in 2013. Northern Ireland does not permit same-sex marriage. In 2004, same-sex civil partnerships were legalized in all of the UK with the passage of the Civil Partnership Act.

For the purposes of entering or remaining in the UK, unmarried and same-sex partners of persons present and settled in the UK who are subject to immigration control (i.e., nationals not from the European Economic Area or Switzerland) enjoy the same benefits as married heterosexual partners. Although the general requirements and process of applying are the same as with heterosexual partners, there are minor differences concerning the documentary evidence that must be produced to demonstrate the legitimacy of the relationship.

To qualify, applicants must:

  • be age 18 or older;
  • have lived together with their partner in a relationship akin to marriage for at least the previous two years;
  • meet or exceed level A1 of the common European Framework of Reference for English language or be exempt;
  • not be in any other marriage or partnership;
  • not be related by blood to the partner;
  • have sufficient accommodation and maintenance without recourse to public funds;
  • intend to live together permanently; and
  • not fail for refusal under the general grounds for refusal to the UK.

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News from the Alliance of Business Immigration Lawyers Vol. 10, No. 7B • July 15, 2014

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Headlines:

1. White House Requests $3.7 Billion for Border Crisis – As the United States continues to grapple with an influx of undocumented children and others along the southern border, President Obama has requested a $3.7 billion supplemental appropriation to fund related activities.

2. EOIR Interim Rule Addresses ‘Largest Caseload’ in U.S. History With Temporary IJs – EOIR published an interim rule effective July 11, 2014, allowing the agency to designate or select temporary immigration judges with the Attorney General’s approval.

3. Leon Rodriguez Sworn In as USCIS Director – Leon Rodriguez was sworn in on July 9, 2014, as the new director of USCIS. The agency has nearly 18,000 employees.

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

5. Member News – Member News

6. Government Agency Links – Government Agency Links

Details:

1. White House Requests $3.7 Billion for Border Crisis

As the United States continues to grapple with an influx of undocumented children and others along the southern border, on July 8, 2014, President Barack Obama requested a $3.7 billion supplemental appropriation to fund activities at the Departments of Homeland Security (DHS), Justice (DOJ), State (DOS), and Health and Human Services (HHS). In its request to Congress, the administration said the money would be used for four main efforts: (1) deterrence, including increased detentions and removals of adults with children and increased immigration court capacity to speed cases; (2) enforcement, including enhanced interdiction and prosecution of criminal networks, increased surveillance, and expanded collaborative law enforcement task force activities; (3) foreign cooperation, including improved repatriation and reintegration, stepped-up public information campaigns, and efforts to address the root causes of undocumented migration; and (4) capacity, including increased detention, care, and transportation of unaccompanied children.

Of the total, $45.4 million would be used to hire approximately 40 additional immigration judge teams, including those anticipated to be hired on a temporary basis. This funding would also expand courtroom capacity, including additional video conferencing and other equipment in support of the additional immigration judge teams. These additional resources, when combined with the FY 2015 budget request for 35 additional teams, “would provide sufficient capacity to process an additional 55,000 to 75,000 cases annually,” the Obama administration said. In addition, $15 million would provide direct legal representation services to children in immigration proceedings, and $1.1 million would be used to hire additional immigration litigation attorneys to support federal agencies involved in detainee admission, regulation, and removal actions.

Also, $295 million would support efforts to repatriate the migrants and reintegrate them in Central America, to help the governments in the region better control their borders, and to address the “underlying root causes” driving the migrations, such as by “creating the economic, social, governance, and citizen security conditions to address factors that are contributing to significant increases in migration to the United States.” Beyond initial assistance, continued funding for repatriation and reintegration activities will be contingent on sustained progress and cooperation by the Central American countries, the administration said.

The supplemental appropriations request notes that separately, the administration plans to continue to work with Congress, following up on President Obama’s letter to congressional leadership on June 30, 2014, “to ensure that we have the legal authorities to maximize the impact of our efforts,” including “providing the Secretary of Homeland Security additional authority to exercise discretion in processing the return and removal of unaccompanied minor children from non-contiguous countries like Guatemala, Honduras, and El Salvador,” and “increasing penalties for those who smuggle vulnerable migrants, like children.”

The Senate Committee on Appropriations held a related hearing on July 10, 2014. Witnesses included Hon. Jeh Johnson, Secretary, DHS; Hon. Sylvia Mathews Burwell, Secretary, HHS; Hon. Thomas A. Shannon, Jr., Counselor, DOS; and Juan P. Osuna, Director, Executive Office for Immigration Review.

SUPPLEMENTAL APPROPRIATIONS REQUEST

RELATED WHITE HOUSE FACT SHEET

SENATE HEARING TESTIMONY (WRITTEN AND WEBCAST)

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2. EOIR Interim Rule Addresses ‘Largest Caseload’ in U.S. History With Temporary IJs

Following the Obama administration’s decision to increase the number of immigration judges deployed to handle cases related to the influx of undocumented migrants in the U.S. southern border area, the Department of Justice’s Executive Office for Immigration Review (EOIR) published an interim rule effective July 11, 2014, allowing the agency to designate or select temporary immigration judges, with the Attorney General’s approval.

The interim rule notes that EOIR “is currently managing the largest caseload the immigration court system has ever seen.” This is due to “attrition in the immigration judge corps and continuing budgetary restrictions” along with a large number of pending cases, the interim rule notes. Allowing the designation of temporary immigration judges will provide flexibility “in responding to the increased challenges facing the immigration courts.”

A new TRAC report finds that as of the end of June 2014, the number of cases pending in the immigration courts is at an all-time high of 375,503. TRAC’s preliminary figures indicated that the number of cases involving juveniles was 41,640, with more arriving daily. “As of the end of June 2014, the court backlog for juveniles from Guatemala is the largest with 12,841 cases, closely followed by Honduras (12,696) and El Salvador (12,162),” TRAC noted. According to the TRAC report, the average time for a pending case before an immigration judge is now 587 days.

The interim rule states that temporary immigration judges may include former Board members, former immigration judges, administrative law judges employed within or retired from EOIR, and administrative law judges from other Executive Branch agencies to act as temporary immigration judges for renewable six-month terms. Administrative law judges from other agencies must have the consent of their agencies to be designated as temporary immigration judges. In addition, the Director of EOIR will be able to designate, with the approval of the Attorney General, attorneys who have at least 10 years of legal experience in the field of immigration law and are currently employed by the Department of Justice to act as temporary immigration judges for renewable six- month terms. The 10 years of experience must be gained after admission to the bar and may be gained through employment by the federal, state, or local government, the private sector, universities, non-governmental organizations, or a combination of such experience.

Characteristics that would qualify a candidate for designation as a temporary immigration judge include the ability to demonstrate the appropriate temperament to serve as a judge; knowledge of immigration laws and procedures; substantial litigation experience, preferably in a high-volume context; experience handling complex legal issues; experience conducting administrative hearings; and knowledge of practices and procedures.

EOIR will provide the training necessary for temporary immigration judges to perform the assigned duties. The Chief Immigration Judge may choose to specify particular types of matters for which each temporary immigration judge will be assigned, consistent with the individual’s training and experience.

INTERIM RULE

TRAC REPORT

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3. Leon Rodriguez Sworn In as USCIS Director

Leon Rodriguez was sworn in on July 9, 2014, as the new director of U.S. Citizenship and Immigration Services (USCIS). The agency has nearly 18,000 employees.

The Senate confirmed Mr. Rodriguez in June 2014. He previously served as the director of the Office for Civil Rights at the U.S. Department of Health and Human Services, a position he held from 2011 to 2014. 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.

Mr. Rodriguez 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 Civil Rights Division at DOJ 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.

ANNOUNCEMENT

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4. New Publications and Items of Interest

E-Verify enhancements. E-Verify recently released three new enhancements: (1) a duplicate case alert pop-up feature; (2) further action notices for Web service users; and (3) a prompt to validate or update user e-mail addresses and phone numbers. E-Verify has also released guidelines for using the E-Verify trademark. MORE INFORMATION

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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5. Member News

Charles Kuck discussed why immigration is important in the United States. VIDEO FROM CCTV AMERICA

Garfinkel Immigration Law Firm is excited to announce the recent appointment of Managing Partner and North Carolina Board Certified Immigration Law Specialist Steven H. Garfinkel to the Charlotte Regional Partnership’s Board of Directors for the 2014-2015 fiscal year. The Charlotte Regional Partnership is a nonprofit economic development organization in Charlotte, North Carolina, which advocates for job creation, long-term growth, and investment opportunities in the Charlotte area. MORE INFORMATION

Stephen Yale-Loehr was interviewed recently on WHCU Radio about the U.S. immigration system and the crisis on the U.S.-Mexico border. AUDIO PODCAST of the interview.

Mr. Yale-Loehr was quoted on PolitiFact in an article on statements by Rick Santorum about undocumented immigration. He noted that deferred action for childhood arrivals does not apply to children arriving on or after June 15, 2012.

Mr. Yale-Loehr was quoted in articles at the following links: June 30: FORBES and July 1: CNN.

Mr. Yale-Loehr will speak on two panels at an EB-5 finance course sponsored by the Council of Development Finance Agencies in Washington, DC, on August 12, 2014. FOR MORE DETAILS OR TO REGISTER.

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6. 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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Immigration Insider News from the Alliance of Business Immigration Lawyers Vol. 10, No. 7A • July 01, 2014

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Headlines:

1. White House Announces Response to Increase in Unaccompanied Children, Families – On June 20, 2014, President Obama announced that he will take administrative action to correct parts of our broken immigration system. In the meantime the President directed the start of a government-wide response to an increase in unaccompanied children entering the United States from Central America.

2. News Highlights: AILA Conference – This article includes selected news highlights from the recent American Immigration Lawyers Association’s annual conference held in Boston, Massachusetts, on June 18-21, 2014.

3. State Dept. Announces End to Afghan Special Immigrant Visa Program, Seeks Extension – Over 6,000 Afghans, mainly interpreters serving the U.S. military and their family members, have received special immigrant visas since October 1, 2013.

4. SEVP Announces New Exchange Visitor Program I-901 Mobile Fee Processing Website – The I-901 Mobile Fee site provides automated fee payment for F-1, F-3, M-1, M-3, and J-1 nonimmigrants and allows users to check the status of their I-901 (fee remittance form) payments. The site includes access to recent I-901 news and updates and information on frequently asked questions.

5. ABIL Global: Italy – Various developments have been announced.

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. White House Announces Response to Increase in Unaccompanied Children, Families

President Barack Obama announced on June 30, 2014, that because House Speaker John Boehner has told him that Republicans in the House of Representatives will not pursue immigration reform legislation this year, he has directed Secretary of Homeland Security Jeh Charles Johnson and Attorney General Eric Holder to identify administrative actions that can be taken “to try to fix as much of the immigration system as possible.” He said he does not “prefer taking administrative action,” and that he takes executive action “only when we have a serious problem…and Congress chooses to do nothing.”

Noting that “there are enough Republicans and Democrats in the House to pass an immigration bill today,” President Obama said he had “held off on pressuring them for a long time to give [House Speaker John] Boehner the space he needed to get his fellow Republicans on board” with immigration reform legislation.

President Obama also sent a letter on June 30 to congressional leaders asking that they “work with me to address the urgent humanitarian challenge on the border, and support the immigration and Border Patrol agents who already apprehend and deport hundreds of thousands of undocumented immigrants every year.” The letter notes, among other things, that the Departments of Justice and Homeland Security are deploying additional enforcement resources, including immigration judges, U.S. Immigration and Customs Enforcement attorneys, and asylum officers, “to focus on individuals and adults traveling with children from Central America and entering without authorization.” Shelters have been opened at three military bases, according to reports. The letter states that the Obama administration will submit a related “formal detailed request when the Congress returns from recess.”

Also, on June 20, President Obama directed DHS and the Federal Emergency Management Agency to coordinate a government-wide response to the increase in unaccompanied children entering the United States from Central America. A White House fact sheet said the first priority “is to manage the urgent humanitarian situation by making sure these children are housed, fed, and receive any necessary medical treatment.” The fact sheet notes that the United States will also increase enforcement and partner with “our Central American counterparts in three key areas: combating gang violence and strengthening citizen security, spurring economic development, and improving capacity to receive and reintegrate returned families and children.”

White House Press Secretary Josh Earnest said, “We’re going to open up some additional detention facilities that can accommodate adults that show up on the border with their children. And we’re going to deploy some additional resources to work through their immigration cases more quickly, so they’re not held in that detention facility for a long time, and hopefully [will] be quickly returned to their home countr[ies].” He blamed much of the influx on misinformation intentionally “propagated by criminal syndicates in Central America.”

In Guatemala, Vice President Joe Biden recently met with regional leaders to address the increase in unaccompanied children and adults coming with their children to the United States and to discuss efforts “to address the underlying security and economic issues that cause migration.”

The Obama administration announced the following related efforts:

  • The U.S. government will provide $9.6 million in additional support to Central American governments for receiving and reintegrating their repatriated citizens. “This funding will enable El Salvador, Guatemala, and Honduras to make substantial investments in their existing repatriation centers, provide training to immigration officials on migrant care, and increase the capacity of these governments and non-governmental organizations to provide expanded services to returned migrants.”
  • In Guatemala, the United States is launching a new $40 million U.S. Agency for International Development (USAID) program over five years to improve citizen security. “This program will work in some of the most violent communities to reduce the risk factors for youth involvement in gangs and address factors driving migration to the United States.”
  • In El Salvador, the United States is initiating a new $25 million Crime and Violence Prevention USAID program over five years that will establish 77 youth outreach centers in addition to the 30 already in existence. “These will continue to offer services to at-risk youth who are susceptible to gang recruitment and potential migration.”
  • In Honduras, under the Central American Regional Security Initiative (CARSI), the United States will provide $18.5 million to support community policing and law enforcement efforts to confront gangs and other sources of crime. In addition, USAID will build on an existing initiative to support 40 youth outreach centers by soon announcing a substantial new Crime and Violence Prevention program.
  • USAID is calling for proposals to support new public-private partnerships through the Global Development Alliance to increase economic and educational opportunities for at-risk youth in El Salvador, Guatemala, and Honduras.
  • The United States also plans to provide $161.5 million this year for CARSI programs “that are critical to enabling Central American countries to respond to the region’s most pressing security and governance challenges. On an ongoing basis, the United States is providing almost $130 million in ongoing bilateral assistance to El Salvador, Honduras, and Guatemala for a variety of programs related to health, education, climate change, economic growth, military cooperation, and democracy assistance.
  • The United States is collaborating on campaigns to help potential migrants understand the significant danger of relying on human smuggling networks and to reinforce that recently arriving children and individuals are not eligible for programs like Deferred Action for Childhood Arrivals (DACA) and earned citizenship provisions in comprehensive immigration reform currently under consideration in the U.S. Congress.
  • The Department of Justice and DHS are taking additional steps to enhance enforcement and removal proceedings. This includes increasing detention of individuals and adults who bring their children with them and handling immigration court hearings “as quickly and efficiently as possible while also protecting those who are seeking asylum.” The fact sheet says this will allow U.S. Immigration and Customs Enforcement (ICE) to return unlawful migrants from Central America to their home countries more quickly.
  • The fact sheet notes that in FY 2013, ICE removed 47,769 undocumented individuals who came to the United States from Guatemala, 37,049 from Honduras, and 21,602 from El Salvador. This represents approximately 29% of all ICE removals.

WHITE HOUSE FACT SHEET
JUNE 30, 2014 PRESS RELEASE
TRANSCRIPT OF PRESIDENT OBAMA’S JUNE 30 REMARKS
PRESIDENT OBAMA’S LETTER TO SPEAKER BOEHNER
TRANSCRIPT OF WHITE HOUSE PRESS SECRETARY EARNEST’S JUNE 20 REMARKS

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2. News Highlights: AILA Conference

The following are selected news highlights concerning labor certification applications and the Student and Exchange Visitor Program (SEVP) from the recent American Immigration Lawyers Association’s (AILA) annual conference, held June 18-21, 2014, in Boston, Massachusetts:

Department of Labor

AILA reminded the audience that the Department of Labor (DOL) is not a fee-based operation and is funded only by Congress. The increase in labor certification cases only puts more pressure on the agency to do more with less. AILA panelists reminded the audience to understand that pressure and to appreciate DOL’s efforts.

Federal Register Notice

  • DOL is accepting comments on continued use of the current Form 9089. Comments are due July 7, 2014. FEDERAL REGISTER NOTICE

Prevailing Wage Issues

  • DOL recommends that practitioners take a two-fold approach to addressing a potentially incorrect prevailing wage determination: (1) file a redetermination request; and (2) follow up with the Center Director. Both options are reviewed at a fairly high level and take about the same amount of time, approximately 60 days. One can pursue both avenues because the actions are reviewed by a different team. If one is still unsuccessful after pursuing both avenues, the next step would be to appeal to the Board of Alien Labor Certification Appeals (BALCA).
  • DOL confirmed that it looks at employer-conducted and commercial surveys, including Radford and Towers surveys. DOL is familiar with the various surveys that are available and is aware that although the job descriptions on the Form 9141 and the surveys may match, if a position carries management duties, there may be an even better match with job descriptions that include the management duties. Positions that carry supervisory duties are in different categories and at higher levels with higher wages. Where there is such a mismatch in levels, the current system does not allow DOL to suggest a different wage level from the surveys, but must default to the Occupational Employment Statistics (OES) wage levels, which renders a JobZone mismatch. This may change in the future, but for now, there is no option to provide more detailed information in rejecting a survey. Other reasons for rejecting surveys submitted include not matching enough of the job description or where the position is a combination of jobs and the survey only addresses one of the jobs. The ultimate goal for the DOL is to protect U.S. workers against “adverse wage impact” and also to determine whether there is a better fit between the job description on the Form 9141 and the available survey information.
  • The Bureau of Labor Statistics created the Standard Occupational Code (SOC) to be used throughout the government. These codes are not created specifically for DOL’s Office of Foreign Labor Certification (OFLC). They are updated every 8 years, and the Bureau of Labor Statistics (BLS) is updating them now. OFLC is spending time catching up with them and updated the PERM system with the SOC 2010 codes about 2 to 3 weeks ago. The codes are constantly changing, albeit in a slow and deliberate fashion. People can comment on the process and DOL encourages comments.
  • American Competitiveness and Workforce Improvement Act and prevailing wages: U.S. Citizenship and Immigration Services (USCIS) and DOL base their determinations on slightly different regulatory language. Also, once DOL makes a determination for one employer, it does not revisit the analysis each time. If an employer disagrees, it can use the redetermination process.

Form 9089 and Beneficiary Qualifications

  • AILA recommends that denial of a PERM labor certification application solely because of not listing a license should be reported to the AILA-DOL liaison committee. A motion for reconsideration should be filed at the same time.
  • AILA has been in discussions with the DOL concerning issuing guidance to practitioners on where best to include a beneficiary’s qualifications. DOL reported that it is close to finalizing a plan of action for a new FAQ. It will still take some time because, in addition to licensure, there are analogous issues to be considered. DOL is reviewing the Form 9089 and instructions. DOL suggested that practitioners list all the experience and qualifications gained with a particular job under the particular job experience listed on the Form 9089. The bottom line is that practitioners should list all the credentials on the Form 9089. One can list a credential even without a job title and this will not cause a denial of the application.

Recruitment Efforts

Given the conflicting holdings in Matter of Credit Suisse Securities and Matter of Symantec Corporation, DOL is following Matter of Credit Suisse Securities(applying 20 CFR § 656.17(f) recruitment instructions to more than newspaper and professional journal ads) in the meantime. AILA submitted an amicus brief on this issue in May 2014.

Audit Tiers

DOL indicated that one of the goals in posting information concerning audit tiers is to bring applications more into compliance. These tiers, however, are not static and DOL continues to evaluate them in relation to agency-run statistics. For example, in 2009 when people were getting laid off in New York City, DOL was still receiving applications where the job opportunities were only requiring a bachelor’s degree with no experience while the offered salary was $100,000. This raised concerns, and DOL continues to examine the ongoing changes in the market to determine the tiers.

Case Consolidation

  • There is no mechanism at the DOL level for consolidating similar cases.
  • Practitioners may ask BALCA to do that.
  • However, if DOL sees a trend, on its own, it may consolidate cases.

SEVP

According to reports, panelists at the AILA conference noted that changes are expected to the Student and Exchange Visitor Program (SEVP) related to F-1 students in optional practical training (OPT) programs performing in jobs related to their fields of study, and improvements in OPT reporting. These changes are in response to a U.S. Government Accountability Office (GAO) report issued in February 2014 on OPT oversight for F-1 and M-1 students.

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3. State Dept. Announces End to Afghan Special Immigrant Visa Program, Seeks Extension

The Department of State has announced that it expects to finish issuing all 3,000 visas for fiscal year 2014 under a special program for Afghans by July 2014. The agency’s authority to issue special immigrant visas (SIVs) to Afghan nationals under the Afghan Allies Protection Act, as amended, is limited to 3,000 visas for Afghan principal applicants in fiscal year 2014.

The Department said, “We welcome action by Congress to extend this program. We are making arrangements to quickly resume issuances of SIVs to Afghan principal applicants if more visas are allocated.” In an op-ed published in the Los Angeles Times on June 3, 2014, Secretary of State John Kerry pleaded for more visas “to help Afghans whose work for the U.S. Government put them in danger of retaliation.” He said, “Keeping our word requires passing legislation this summer to authorize additional visas for the remainder of this fiscal year and for the next fiscal year. We don’t want to lose the hard-won momentum or put lives at risk.”

More than 9,000 Afghans who have worked for the United States in Afghanistan (and their family members) have benefited from the SIV program. Of these, more than 70 percent served as translators, with the vast majority serving U.S. military forces in Afghanistan. Over 6,000 Afghans, mainly interpreters and their family members, have received SIVs since October 1, 2013. This includes just over 2,300 principal applicants and 3,700 of their family members.

ANNOUNCEMENT

RELATED FACT SHEET

FAQ

SECRETARY KERRY’S OP-ED

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4. SEVP Announces New Exchange Visitor Program I-901 Mobile Fee Processing Website

The Student and Exchange Visitor Program (SEVP) has announced a new automated I-901 Mobile Fee website.

The I-901 Mobile Fee site provides automated fee payment for F-1, F-3, M-1, M-3, and J-1 nonimmigrants. It also allows users to check the status of their I-901 (fee remittance form) payments. The site includes access to recent I-901 news and updates and information on frequently asked questions.

The site also includes information about Western Union payment automation. The system allows applicants to post Western Union payments and print their I-901 payment confirmations.

For more information on the I-901 Mobile Fee site and Western Union payment automation, see https://www.fmjfee.com/.

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5. ABIL Global: Italy

Various developments have been announced.

New Start-Up Visa

The Italian Ministry of Foreign Affairs has established a new type of visa (under measure 44 of the Plan “Destinazione Italia” and Law no. 221/2012) to attract and retain foreign entrepreneurs planning to establish a start-up company in Italy.

The visa issuance procedure is expected to be fast and streamlined. A technical committee established by the Ministry of Industry and Economic Development will evaluate the start-up companies. To obtain an entry visa for startups, a foreign entrepreneur must prove ownership of at least €50,000 in financial resources. This funding can be raised through venture capital, crowdsourcing, investors, or Italian/foreign governments and non-governmental organizations. Special facilitations are provided for foreign citizens who have the support of a certified incubator.

Two other types of visas may be useful, depending on the activities the investor is willing to carry out:

Autonomous Work Visa—for individuals willing to work autonomously (e.g., freelancers, consultants) or to establish a company in Italy. The autonomous work visa is subject to numerical caps.

Appointed directors employed by a foreign company and temporarily assigned to an Italian-affiliated company may be granted an autonomous work visa without any quota limit.

Elective Residence Visa—for individuals who are interested only in living in Italy without carrying out any work activities. The elective residence visa is limited to those who have a significant amount of money and savings and are able to live in Italy with no need of work-related income.

The requirements and conditions to apply for the start-up visa are listed on the Italian Ministry of Foreign Affairs website (Startup Visa Guidelines and Italia Startup Procedures).

Expo 2015 Work Permits

Italy’s Ministry of Foreign Affairs has issued guidelines for work permits for delegates, workers, and participants who will attend Expo 2015 in Milan. Official delegates (and their dependents) may obtain a mission visa. Non-accredited individuals (e.g., delegates of companies attending the Expo and workers to be employed at the site) may be granted a work visa following an electronic fast-track procedure established by the Ministry. The Ministry also has provided guidelines for the issuance of tourist visas to visitors.

GUIDELINES

New Quotas for Seasonal Work and for Workers Participating in Expo 2015

Online applications may be submitted until December 31. 15,000 new quotas are available for seasonal workers of the following nationalities: Albania, Algeria, Bosnia-Herzegovina, Egypt, Republic of the Philippines, Gambia, Ghana, Japan, India, Kosovo, the former Yugoslav Republic of Macedonia, Morocco, Mauritius, Moldova, Montenegro, Niger, Nigeria, Pakistan, Senegal, Serbia, Sri Lanka, Ukraine, and Tunisia. 3,000 of these quotas are intended for those having entered Italy for seasonal work in the past two years.

2,000 new quotas have also been allocated to individuals assigned to work at the Milan Expo 2015.

Registration of a Same-Sex Marriage Celebrated in the United States

An Italian lower court ordered City Hall to register in the Civil Records (Stato Civile) the marriage of an Italian same-sex couple married in New York in 2012.

Non-EU nationals married with a same-sex EU partner were recently granted the right to obtain a family residence permit but their marriage could not be officially recorded at City Hall.

The Public Prosecutor has announced that the decision will be challenged before the Court of Appeal. Therefore, it could be reversed. This is, however, a further step toward the full recognition of same-sex marriages in Italy.

New Requirement for Residency Registrations

As of May 20, 2014, individuals of all nationalities applying for residency registration must submit documents proving that they have a legal right to live at the address indicated in the application. Depending on the situation, applicants may be asked to submit a copy of a registered tenancy agreement, a self-declaration signed by the house owner, and/or a declaration of hospitality.

Court of Rome Confirms That Children Born to Unmarried Parents Are Entitled to Italian Citizenship

On March 21, 2014 (sentence no. 7472), the Rome Court confirmed that eligibility for Italian citizenship is extended to children born to unmarried parents, provided that some requirements are met. In particular, children younger than 18 years old born to Italian unmarried parents are automatically granted Italian citizenship, while children older than 18 must apply for citizenship within one year of spontaneous legitimation or recognition by the court.

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6. New Publications and Items of Interest

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

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

Mr. Klasko recently presented “Due Diligence Training for EB-5 Projects” at the Invest in Texas Initiative Conference.

Mr. Klasko also recently addressed immigration lawyers in New York on the fundamentals of the EB-5 investor visa program. The New York chapter of the American Immigration Lawyers Association hosted the annual event.

Mr. Mehta has co-authored a new blog entry. “Two Aces Up President Obama’s Sleeve To Achieve Immigration Reform Without Congress—Not Counting Family Members And Parole In Place”

Stephen Yale-Loehr was quoted in a CNN.com article, “Immigrant Children Tread Treacherous Political Landscape,” on June 17, 2014. Mr. Yale-Loehr observed that the Deferred Action for Childhood Arrivals program may have caused “unintended consequences.” He noted that President Obama was clear in 2012 about “what his executive action did and did not do. He did not intend to signal that other children should come to the U.S. But many times immigration law gets distorted and [the kids may have made the journey] based on those false rumors that children will be allowed to stay 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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