News from the Alliance of Business Immigration Lawyers Vol. 10, No. 8B • August 15, 2014
Headlines:
1. DOS Makes ‘Significant Progress’ in Bringing Visa Processing Back Online and Clearing Backlogs – DOS said it has caught up with issuances for most of the worldwide backlog of nonimmigrant visa cases and is working to bring the system back to full operational capacity.
2. CBP Announces New Mobile Passport Control App – The Mobile Passport Control app will allow eligible travelers to submit their passport information and customs declaration forms via a smartphone or tablet computer before CBP inspection.
3. Visa Bulletin for September Advances India EB-2 Cut-Off Date, Announces Numerical Limits for FY 2014 – The India employment-based second preference cut-off date to advance very rapidly in recent months, although further advancements cannot be guaranteed.
4. OSC Advises on How to Proceed After Over-Documenting Employees – OSC cannot advise on specific facts but offers general guidance, including “free webinar training by our office or distribution of educational materials to [a company’s] staff.”
5. DOS Extends Special Immigrant Visas for Afghans – In addition to the 3,000 visas for Afghan principal applicants originally allocated for use in fiscal year 2014, another 1,000 SIVs may be issued until December 31, 2014. The program will end on that date unless Congress further extends it.
6. USCIS Says Applicants Can Receive Certain Docs by Delivery Service of Their Choice – Applicants can prepay to use the overnight delivery or courier service of their choice to receive certain documents, such as approval and denial notices, requests for evidence, and most travel documents.
7. Pro Bono News: Miller Mayer – Attorneys at Miller Mayer, an Alliance of Business Immigration Lawyers member firm, recently won a complicated pro bono appeal at the Board of Immigration Appeals.
8. New Publications and Items of Interest – New Publications and Items of Interest
9. Member News – Member News
10. Government Agency Links – Government Agency Links
Details:
1. DOS Makes ‘Significant Progress’ in Bringing Visa Processing Back Online and Clearing Backlogs
The Department of State (DOS) announced that it has made “significant progress” in bringing back online the Consular Consolidated Database (CCD), used to print and approve visas and passports. The system had crashed in July 2014 and has continued to experience outages, resulting in processing backlogs. DOS said it has caught up with issuances for most of the worldwide backlog of nonimmigrant visa cases and is working to bring the CCD back to full operational capacity. “We continue to prioritize immigrant visas, adoption cases, and emergency nonimmigrant visa cases. We are printing visas for these cases and all cases with very few delays,” a DOS statement noted. For information on specific cases, the agency advises checking with the embassy or consulate where the person will apply or has scheduled an interview.
DOS noted that the problems started shortly after a software update on July 20, 2014, although the agency has not been able to identify a “root cause.” DOS said current efforts are focused on bringing the system back to normal operations. Once that has been accomplished, DOS will investigate the cause, and the agency also has been working with Oracle and Microsoft to implement system changes aimed at optimizing performance and addressing ongoing issues. DOS is also bringing additional servers online to increase capacity and response time. DOS noted that it has experienced minor outages in the past, but not of this magnitude.
The agency says visa applicants should “expect delays as we process pending cases,” but that it remains able “to quickly process emergency cases to completion.” DOS estimates that visa issuances may be delayed 10 to 14 days until the system is restored to full functionality and pending applications are printed.
DOS says it understands the importance to international students and exchange visitors, their families, and their U.S. host institutions of timely visa issuance to facilitate travel and to ensure that all students and exchange visitors may begin their programs on time. “We are committed to issuing visas to all qualified students and exchange visitors. Student and exchange visitor visa applicants should submit their applications well in advance of expected travel dates. We will make every effort to ensure timely visa issuance,” DOS said. The agency added that in situations where a student won’t be able to arrive at school on time, “[s]tudents should contact their educational institution’s Designated School Official (F and M visas) or designated U.S. sponsor’s Responsible Officer (J visas) and discuss with them what arrangements they can provide for you to begin your program after the start date on your Form I-20 (F and M visas) or Form DS 2019 (J visas).”
Regarding the diversity visa (DV) program, the agency noted that immigrant visa processing, including diversity visas, “continues and remains a high priority. The Department expects to have used all numbers for DV-2014 when the program year ends on September 30, 2014.”
Some individuals would like to have their passports returned before their U.S. visas are printed. DOS said it is working with posts around the world to develop procedures to manage these requests. Each embassy and consulate will post contact information on its website for applicants with questions about the status of their cases.
DOS noted that those traveling under the Visa Waiver Program, and those whose previously issued visas remain valid, are not affected. DOS routinely advises visa applicants to make appointments well in advance of planned travel, and not to book travel until they have their printed visas in hand.
DOS said it plans to upgrade the CCD again to a newer version of the Oracle commercial database software by the end of 2014.
2. CBP Announces New Mobile Passport Control App
U.S. Customs and Border Protection (CBP) announced the launch of the first authorized “app” (mobile application) to expedite a traveler’s entry process into the United States. Mobile Passport Control (MPC) will allow eligible travelers to submit their passport information and customs declaration forms via a smartphone or tablet computer before CBP inspection.
Airside Mobile and Airports Council International-North America (ACI-NA) developed the app in partnership with CBP as part of a pilot program at the Hartsfield-Jackson Atlanta International Airport. MPC is expected to expand to more airports later this year and to Android smartphone users in the future. Currently, iPhone and iPad users can download the app for free from Apple’s App Store.
CBP Commissioner R. Gil Kerlikowske said, “By offering this app to passengers, we hope to build upon the success we have already experienced with Automated Passport Control, which has resulted in decreases in wait times as much as 25-40 percent, even with continued growth in international arrivals.” The app does not require pre-approval and does not collect any new information on travelers.
ACI-NA contracted with Airside Mobile for MPC’s technical development. ACI-NA President and CEO Kevin M. Burke said, “We look forward to continuing our collaboration with CBP as Mobile Passport begins its roll-out at U.S. airports later this year.”
There are five steps to MPC:
- Download the Mobile Passport Control App from the Apple App Store before arriving;
- Create a profile with the passport information;
- Complete the “New Trip” section upon arrival in the United States;
- Submit the customs declaration form through the app to receive an electronic receipt with an Encrypted Quick Response (QR) code (the receipt will expire four hours after being issued); and
- Bring the passport and smartphone or tablet with the digital bar-coded receipt to a CBP officer.
INFORMATION ABOUT MOBILE PASSPORT, including how to download, user eligibility, and other frequently asked questions, ADDITIONAL INFORMATION
3. Visa Bulletin for September Advances India EB-2 Cut-Off Date, Announces Numerical Limits for FY 2014
The Department of State’s Visa Bulletin for September 2014 noted that the use of potentially “otherwise unused” employment visa numbers prescribed by § 202(a)(5) of the Immigration and Nationality Act (INA) has allowed the India employment-based second preference cut-off date to advance very rapidly in recent months. The Visa Bulletin warned, however, that continued forward movement of this cut-off date during the upcoming months cannot be guaranteed, and said that no assumptions should be made until the dates are formally announced. Once there is a significant increase in India employment second preference demand, it will be necessary for DOS to retrogress the cut-off date, “possibly as early as November,” to hold number use within the fiscal year 2015 annual limit, the agency said.
The Visa Bulletin for September also notes that DOS has determined the numerical limits for fiscal year 2014. The Worldwide employment-based preference limit is 150,241; the family-sponsored preference limit is 226,000; and the per-country limit is 26,337. The dependent area limit is 7,525.
4. OSC Advises on How to Proceed After Over-Documenting Employees
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently responded to a request for guidance on how to proceed after discovering that a company had accepted more documentation than necessary for Form I-9 employment verification purposes in a few cases.
OSC noted that it is unaware of any publicly available guidance issued by any agency regarding steps an employer should take if it accepts too many documents during the I-9 process. However, OSC pointed out that an employer may violate the Immigration and Nationality Act if it requests more or different documents than required, or rejects “reasonably genuine-looking documents” on the basis of citizenship or immigration status or on the basis of national origin during the I-9 process. OSC also noted that although an employer should correct its practices upon learning that it may have violated the antidiscrimination provision of the INA, an employee who believes that he or she was the victim of discriminatory I-9 practices has up to 180 days from the date of the practice to file a charge with the OSC. OSC advised the inquiring employer to see http://www.justice.gov/crt/about/osc or call its toll-free employer hotline at 1-800-255-8155 to learn about resources available to assist human resources staff in complying with the provision in the future, including “free webinar training by our office or distribution of educational materials to your staff.” The OSC noted that it cannot provide an advisory opinion on any specific case or set of facts.
5. DOS Extends Special Immigrant Visas for Afghans
The Department of State announced that its authority to issue special immigrant visas (SIVs) to certain Afghan nationals under the Afghan Allies Protection Act of 2009, as amended, has been extended. In addition to the 3,000 visas for Afghan principal applicants originally allocated for use in fiscal year 2014, another 1,000 SIVs may be issued until December 31, 2014. The program will end on that date unless Congress further extends it.
6. USCIS Says Applicants Can Receive Certain Docs by Delivery Service of Their Choice
U.S. Citizenship and Immigration Services (USCIS) announced that applicants can prepay to use the overnight delivery or courier service of their choice to receive certain documents, such as approval and denial notices, requests for evidence, and most travel documents.
To ensure that overnight delivery requests are not delayed, USCIS advised:
- Including a prepaid air bill when submitting an application, petition, or response to a request for evidence. “The best way to avoid delivery errors is to provide a prepaid shipping label obtained directly from the delivery service. This will avoid the need to write in an account number,” USCIS said. The sender’s name should be entered in both the “to” and “from” fields on the air bill.
- Never listing USCIS as the sender and not marking “bill to sender.”
- Paying all delivery costs in advance and including the prepaid air bill with the submission.
If the delivery costs are not paid in full, USCIS will send the documents by regular U.S. mail.
7. Pro Bono News: Miller Mayer
Attorneys at Miller Mayer, an Alliance of Business Immigration Lawyers member firm, recently won a complicated pro bono appeal at the Board of Immigration Appeals (BIA). The case involved proving that the applicant had actually been admitted to the United States in 2001. The Border Patrol inspected the applicant’s boyfriend, who was driving their car, but did not ask the applicant any questions. The applicant later married her boyfriend and applied for a green card. Because she was out of status, she could adjust only if she could prove that she had been properly admitted when she entered the United States.
The immigration judge held that the applicant had not proved she had been inspected and admitted and ordered her removed from the United States. On appeal, Miller Mayer showed that the immigration judge had erred both factually and based on relevant case law. The BIA remanded the case to the immigration judge so that the applicant can now apply to adjust her status to permanent residence.
8. 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.”
Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
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
9. Member News
Several ABIL members will speak at a conference on EB-5 immigrant investor issues to be held August 22-23, 2014, at the Radisson Blu Aqua Hotel in Chicago, Illinois. The American Immigration Lawyers Association is sponsoring the conference. H. Ronald Klasko will moderate a panel on securities law compliance and how to deter EB-5 fraud. Robert F. Loughran will speak on a panel on getting started in the EB-5 immigrant investor process at the AILA EB-5 Conference in Chicago. Topics include comparing EB-5 with other visa alternatives, initial EB-5 eligibility, the client-by-client evaluation of the appropriateness of regional center programs, and special considerations surrounding removal of conditions. Cyrus Mehta will speak on ethical issues in EB-5 practice. Bernard Wolfsdorf will moderate “China Issues,” a panel that will address a wide variety of topics important to representing Chinese EB-5 investors, ranging from China’s tax, securities, and currency laws to membership in the Communist Party. Stephen Yale-Loehr will moderate a panel called EB-5 101: How to Get Started. MORE INFORMATION
Charles Kuck published an excerpt on his blog from his op-ed in the Atlanta Journal-Constitution of August 1, 2014. “Obama Can Fix Some Immigration Problems”
Mr. Loughran will be traveling from July 31 to August 7, 2014, with the Office of the Governor of the State of Texas and the Texas Secretary of State. Mr. Loughran presented to potential foreign investors and corporate executives in Rio de Janeiro and São Paulo, Brazil, and Santiago, Chile, as a part of the Texas One delegation, which highlights Texas as a destination for economic development. Mr. Loughran’s presentation focused on what to expect when facing immigration challenges while investing in the United States.
Mr. Yale-Loehr spoke on two panels at an EB-5 finance course sponsored by the Council of Development Finance Agencies (CDFA) in Washington, DC, on August 12, 2014. CDFA is a national association dedicated to the advancement of development finance concerns and interests.
Mr. Klasko, one of the country’s top EB-5 immigration lawyers and founding partner of Klasko, Rulon, Stock & Seltzer, LLP, recently presented “Preparing for the I-829 Bubble” during a webinar sponsored by NES, the largest EB-5 escrow administrator. Mr. Klasko addressed new and existing EB-5 Regional Centers, and explained the items that must be considered for an -829 submission. The I-829 petition is the last step of the EB-5 visa process for immigrant investors to become lawful permanent residents of the United States.
10. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin