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U.S., China Extend Short-Term, Business Visa Validity in Reciprocal Arrangement

November 22, 2014/in China, News /by ABIL

On November 12, 2014, the United States began issuing visas in accordance with a new reciprocal arrangement with China, the Department of State’s Bureau of Consular Affairs announced. Chinese applicants who qualify for a B nonimmigrant visa (NIV) may now be issued multiple-entry visas for up to 10 years for business and tourist travel. Qualified Chinese students and exchange visitors and their dependents who qualify for F, M, or J visas are now eligible for multiple-entry visas valid for up to five years or the length of their program. U.S. citizens eligible for Chinese short-term business and tourist visas should also receive multiple-entry visas valid for up to 10 years, while qualified U.S. students may receive student residence permits valid up to five years, depending on the length of their educational programs.

The Bureau noted that visa validity is not the same as the allowed duration of stay. A visa allows a foreign citizen to travel to a U.S. port of entry where a Customs and Border Protection officer will grant admission to valid travelers. In doing so, the officer will inform the traveler of the permitted length of stay. The current change in visa validity does not change the permitted duration of stay for any visa class.

The Bureau said it expects that these changes in visa validity “will be very popular among Chinese travelers. The U.S. Mission in China is taking steps to handle a potential increase in visa workload and intends to keep visa processing times as short as they have been over the past several years.”

There will be no change in visa application fees. The basic visa fee of $160 includes appointment scheduling and passport delivery services.

The United States and China continue to discuss visa validity for other classes of visas. All such decisions are made on a reciprocal basis. The Bureau noted that in FY 2014, business, tourist, student, and exchange visitor visas represented 97 percent of all nonimmigrant visa applications processed in China for Chinese citizens.

A related White House fact sheet notes that China is the fastest-growing outbound tourism market in the world. In 2013, 1.8 million Chinese travelers visited the United States, contributing $21.1 billion to the U.S. economy and supporting more than 109,000 American jobs. Chinese travelers consistently rank the United States as their most-desired travel destination, the fact sheet notes, yet less than 2 percent of total Chinese travelers come to the United States. Chinese travelers cite ease of visa policies as the second most important factor in deciding where to travel, behind only cost. “A competitive visa policy will help us meet projections that suggest as many as 7.3 million Chinese travelers will come to the United States by 2021, contributing nearly $85 billion a year to the economy and supporting up to 440,000 U.S. jobs,” the fact sheet states.

The White House fact sheet also notes that 28 percent of all foreign students and exchange visitors in the United States originate from China. Chinese students in the United States spent $8 billion in 2013, an increase of nearly 24 percent over the previous year.

ANNOUNCEMENT

RELATED FAQ

WHITE HOUSE FACT SHEET

REVISED RECIPROCITY SCHEDULE

https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2014-11-22 14:02:332020-01-22 14:03:13U.S., China Extend Short-Term, Business Visa Validity in Reciprocal Arrangement

News from the Alliance of Business Immigration Lawyers Vol. 10, No. 11B • November 15, 2014

November 15, 2014/in Immigration Insider /by ABIL

Headlines:

1. Following Midterm Elections, Obama Plans Executive Orders on Immigration – President Obama reportedly plans to order several immigration-related changes by the end of this year.

2. U.S., China Extend Short-Term, Business Visa Validity in Reciprocal Arrangement – On November 12, 2014, the United States began issuing visas in accordance with a new reciprocal arrangement with China.

3. Justice Dept. Settles Discrimination Cases in California and Georgia – The U.S. Department of Justice recently settled several immigration-related discrimination claims in California and Georgia.

4. USCIS Begins Transferring Some Casework From Vermont to California – Affected casework so far includes Form I-751, Petition to Remove the Conditions of Residence.

5. USCIS Launches myE-Verify for Employees – myE-Verify accounts and Self Lock will initially be accessible to individuals in Arizona, Idaho, Colorado, Mississippi, Virginia, and the District of Columbia. In future releases, USCIS will roll out myE-Verify across the country with additional features focused on employees and job seekers.

6. USCIS Naturalizes Service Members on Veterans Day – USCIS welcomed more than 3,000 new citizens at nearly 40 naturalization ceremonies taking place across the country from November 7 through 14, 2014. Since September 2002, USCIS has naturalized more than 102,000 service members.

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

8. Member News – Member News

9. Government Agency Links – Government Agency Links


Details:

1. Following Midterm Elections, Obama Plans Executive Orders on Immigration

According to reports, President Obama plans to order several immigration-related changes by the end of this year. The plans, not yet finalized, possibly include allowing certain parents of U.S. citizen or permanent resident children to stay in the United States. Other changes being considered include expanding the Deferred Action for Childhood Arrivals program, instituting protections for unauthorized farmworkers who have been working in the United States for years, expanding opportunities for immigrants with technology skills, and clarifying guidance on the prioritization of criminals and others for removal.

Shortly after the midterm elections on November 4, 2014, in which it did not appear that immigration issues were deciding factors, President Obama said, “Before the end of the year, we’re going to take whatever lawful actions that I can take that I believe will improve the functioning of our immigration system. What I’m not going to do is just wait.” President Obama has said he would reverse those executive orders if Congress passes a comprehensive immigration legislation that he can sign. Republicans countered that they would fight whatever changes the President orders “tooth and nail,” according to House Speaker John Boehner (R-Ohio). He said all options were on the table. Senate Majority Leader Mitch McConnell (R-Ky.) said that any unilateral executive actions on immigration would be like “waving a red flag in front of a bull.”

On the other side are immigration advocates who expect President Obama to keep earlier promises. Kevin Appleby, director of migration policy at the United States Conference of Catholic Bishops, said, “This is his last chance to make good on his promise to fix the system. If he delays again, the immigration activists would—just politically speaking—jump the White House fence.”

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2. U.S., China Extend Short-Term, Business Visa Validity in Reciprocal Arrangement

On November 12, 2014, the United States began issuing visas in accordance with a new reciprocal arrangement with China, the Department of State’s Bureau of Consular Affairs announced. Chinese applicants who qualify for a B nonimmigrant visa (NIV) may now be issued multiple-entry visas for up to 10 years for business and tourist travel. Qualified Chinese students and exchange visitors and their dependents who qualify for F, M, or J visas are now eligible for multiple-entry visas valid for up to five years or the length of their program. U.S. citizens eligible for Chinese short-term business and tourist visas should also receive multiple-entry visas valid for up to 10 years, while qualified U.S. students may receive student residence permits valid up to five years, depending on the length of their educational programs.

The Bureau noted that visa validity is not the same as the allowed duration of stay. A visa allows a foreign citizen to travel to a U.S. port of entry where a Customs and Border Protection officer will grant admission to valid travelers. In doing so, the officer will inform the traveler of the permitted length of stay. The current change in visa validity does not change the permitted duration of stay for any visa class.

The Bureau said it expects that these changes in visa validity “will be very popular among Chinese travelers. The U.S. Mission in China is taking steps to handle a potential increase in visa workload and intends to keep visa processing times as short as they have been over the past several years.”

There will be no change in visa application fees. The basic visa fee of $160 includes appointment scheduling and passport delivery services.

The United States and China continue to discuss visa validity for other classes of visas. All such decisions are made on a reciprocal basis. The Bureau noted that in FY 2014, business, tourist, student, and exchange visitor visas represented 97 percent of all nonimmigrant visa applications processed in China for Chinese citizens.

A related White House fact sheet notes that China is the fastest-growing outbound tourism market in the world. In 2013, 1.8 million Chinese travelers visited the United States, contributing $21.1 billion to the U.S. economy and supporting more than 109,000 American jobs. Chinese travelers consistently rank the United States as their most-desired travel destination, the fact sheet notes, yet less than 2 percent of total Chinese travelers come to the United States. Chinese travelers cite ease of visa policies as the second most important factor in deciding where to travel, behind only cost. “A competitive visa policy will help us meet projections that suggest as many as 7.3 million Chinese travelers will come to the United States by 2021, contributing nearly $85 billion a year to the economy and supporting up to 440,000 U.S. jobs,” the fact sheet states.

The White House fact sheet also notes that 28 percent of all foreign students and exchange visitors in the United States originate from China. Chinese students in the United States spent $8 billion in 2013, an increase of nearly 24 percent over the previous year.

ANNOUNCEMENT

RELATED FAQ

WHITE HOUSE FACT SHEET

REVISED RECIPROCITY SCHEDULE

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3. Justice Dept. Settles Discrimination Cases in California and Georgia

The U.S. Department of Justice (DOJ) recently settled several immigration-related discrimination claims in California and Georgia.

California case. DOJ reached an agreement with Serendipity Hearing Inc., doing business as Sonus Hearing Care (Sonus), a hearing services provider headquartered in the Los Angeles, California, metropolitan area. The agreement resolves a claim, filed with DOJ’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), that the company engaged in discriminatory documentary practices during the employment eligibility verification process.

OSC’s investigation found that Sonus required the complainant, a lawful permanent resident (LPR) it had hired, to produce a new employment eligibility document when her permanent resident card expired, even though the Form I-9 and E-Verify rules prohibit this practice because LPRs have permanent work authorization in the United States after their permanent resident cards expire. When the complainant failed to present her new permanent resident card, Sonus terminated her. OSC noted that the Immigration and Nationality Act’s antidiscrimination provision prohibits employers from making additional and unauthorized documentary demands based on citizenship status or national origin when verifying or re-verifying an employee’s employment eligibility.

Under the settlement agreement, Sonus will pay $16,727 in back pay to the complainant and $400 in civil penalties to the United States, undergo training on the INA’s antidiscrimination provision, revise its employment eligibility re-verification policies, and be subject to monitoring of its employment eligibility verification practices.

Georgia case. DOJ reached an agreement with Constructor Services Inc. (CSI), a construction company headquartered in the Atlanta, Georgia, metropolitan area. The agreement resolves a claim that the company engaged in discriminatory documentary practices during the employment eligibility verification process.

DOJ’s investigation found that CSI required non-U.S. citizens, but not similarly situated U.S. citizens, to produce specific documentary proof of their immigration status for the purpose of verifying their employment eligibility. “Employers must make sure that they are not erecting unlawful discriminatory barriers in their employment eligibility verification policies and practices,” said Molly Moran, Acting Assistant Attorney General for the Civil Rights Division.

Under the settlement agreement, CSI will pay $18,000 in civil penalties to the United States, undergo training on the INA’s antidiscrimination provision, revise its employment eligibility reverification policies, and be subject to monitoring of its employment eligibility verification practices for 24 months.

CALIFORNIA CASE ANNOUNCEMENT

GEORGIA CASE ANNOUNCEMENT

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4. USCIS Begins Transferring Some Casework From Vermont to California

U.S. Citizenship and Immigration Services (USCIS) recently began transferring some casework from the Vermont Service Center to the California Service Center to balance workloads. Affected casework so far includes Form I-751, Petition to Remove the Conditions of Residence, for certain marriage-related green card cases.

USCIS will send transfer notices to those affected. The original receipt number will not change and the transfer will not delay processing, USCIS said. The words “Case Type: CRI89 Approved Removal of Conditions” will be printed on the transfer notices. USCIS said that the notice may not contain the receipt number of the pending I-751. Those receiving any notice should respond to the service center that sent them the notice.

Those who do not receive a decision within the published processing time for the California Service Center may submit an inquiry using e-Request or call the National Customer Service Center at 1-800-375-5283. For TDD (hearing-impaired) assistance, please call 1-800-767-1833.

ANNOUNCEMENT

PUBLISHED PROCESSING TIMES

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5. USCIS Launches myE-Verify for Employees

U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez recently announced the launch of myE-Verify, a new website designed for employees. myE-Verify is a “one-stop shop” for employees to create and maintain secure personal accounts and access new features for identity protection, USCIS said.

myE-Verify includes Self Check and the Employee Rights Toolkit, among other things. Users will have their identities verified through Self Check when creating myE-Verify accounts. myE-Verify introduces the following new services:

  • myE-Verify accounts – Allows employees and job seekers to set up free and secure personal accounts to manage the use of their information in E-Verify and Self Check through the available myE-Verify features.
  • Self Lock – Allows individuals to lock their social security numbers to prevent unauthorized or fraudulent use within E-Verify. Self Lock is available only to myE-Verify account holders.
  • myResources – A section of the myE-Verify site that contains information in multi-media formats to educate employees about their rights as well as the responsibilities of employers in the employment eligibility verification process.

myE-Verify accounts and Self Lock will initially be accessible to individuals in Arizona, Idaho, Colorado, Mississippi, Virginia, and the District of Columbia. In future releases, USCIS will roll out myE-Verify across the country with additional features focused on employees and job seekers.

E-Verify is used by nearly 550,000 employers to verify the employment eligibility of persons they hire.

ANNOUNCEMENT

INFORMATION ON E-VERIFY

MYEVERIFY PAGE

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6. USCIS Naturalizes Service Members on Veterans Day

U.S. Citizenship and Immigration Services (USCIS) highlighted service members, military spouses, and veterans taking the Oath of Allegiance to become U.S. citizens at naturalization ceremonies in honor of Veterans Day. In all, USCIS welcomed more than 3,000 new citizens at nearly 40 naturalization ceremonies taking place across the country from November 7 through 14, 2014. Since September 2002, USCIS has naturalized more than 102,000 service members, including individuals serving in Iraq, Afghanistan, South Korea, Germany, Japan, and elsewhere.

Highlights included ceremonies at:

  • National Museum of the Marine Corps in Triangle, Virginia
  • Pima Air & Space Museum in Tucson, Arizona
  • Soldiers & Sailors Memorial Hall & Museum in Pittsburgh, Pennsylvania
  • Everglades National Park in Homestead, Florida
  • Nellis Air Force Base in Nevada

In addition, five recruits became new citizens at the Marine Corps Recruit Depot in San Diego through the Naturalization at Basic Training Initiative. Developed with the Department of Defense, this program allows enlisted service members to complete the naturalization process during basic training.

USCIS invited new citizens and their families and friends to share their experiences from the ceremonies through Twitter and other social media, using the hashtag #newUScitizen.

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7. New Publications and Items of Interest

USCIS enhances Case Status tool. USCIS has enhanced its Case Status tool, which now includes case history, next steps, and clearer information. USCIS has also provided easy-to-navigate sections on USCIS news, outreach events, educational webinars, and other services. Earlier this year, USCIS also enhanced the Change of Address and e-Request tools. USCIS says the new look of the website and the updates to Case Status will give users a unified experience. Users can keep track of their cases, make appointments at local field offices, check filing fees, file certain forms electronically, see office case processing times, and verify employment eligibility, among other things. MORE INFORMATION ABOUT USCIS’ ONLINE TOOLS

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.

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 BLOG

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8. Member News

Charles Kuck has authored a new blog entry. “The GOP and Immigration Reform, and Obama and Executive Orders”

Robert Loughran spoke on October 29, 2014, on “Immigration Considerations in Renunciation of U.S. Citizenship” at the Global Residence and Citizenship Conference in Singapore.

Sharon Mehlman recently co-authored “Risky Business: Assumptions in the Hiring Process,” which was published in Bender’s California Labor and Employment Bulletin for November 2014.

Cyrus Mehta has co-authored a new blog entry. “The Fate of Executive Action on Immigration After the Midterm Elections”

Mr. Mehta was quoted in an article on Forbes.com, “Will President Obama Help Legal Immigrants Too?”

Bernard Wolfsdorf spoke at the Investment Immigration Summit in Hong Kong on November 11-12, 2014. The Investment Immigration Summit is one of the leading immigration conferences in Asia. Mr. Wolfsdorf spoke on the panel, “Quota Retrogression: Implications for Chinese HNWIs and the Future of the EB-5 Programme.”

Stephen Yale-Loehr was quoted in Bloomberg BNA on immigration reform prospects after the midterm elections. In “Midterms’ Impact on Immigration Unclear as Advocates Await Action by President,” published on November 5, 2014, Mr. Yale-Loehr said “there’s an opportunity” for Congress to pass an overhaul bill, but he noted that the chances of that happening “are less than 50 percent.” He added that the next Congress will be “just as fractured as the previous Congress, and getting any legislation to pass will be difficult. If President Obama takes administrative action, that “could make it even harder to get comprehensive immigration reform through Congress.”

Mr. Yale-Loehr was quoted in the Wall Street Journal in “U.S. Visa Program Attracts 11 Million Applicants: Lawmakers May Be Poised To End the Green-Card Lottery,” published on November 6, 2014. “A lottery is not a way to run an immigration system. It doesn’t strengthen family ties, promote our economic interests, or rescue refugees. Congress should abolish the program,” he said.

Mr. Yale-Loehr was quoted in articles in Spanish published in November 2014 about the effects of the midterm elections in the United States, in El Nuevo Herald, El Imparcial, and La Prensa Grafica.

Mr. Yale-Loehr was quoted on President Obama’s authority to act administratively on immigration. Mr. Yale-Loehr noted, “Legally, the president has wide authority to act administratively on immigration…Politically, however, the president has boxed himself into a corner…The only real solution is for Congress to enact comprehensive immigration reform.” The article is available in Spanish.

Mr. Yale-Loehr was quoted on Time.com regarding the potential political fallout of President Obama’s expected upcoming announcement on executive actions to reform the U.S. immigration system. Mr. Yale-Loehr noted that “Republicans will argue that even the smallest executive immigration actions subvert Congress’ power.”

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9. 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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https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2014-11-15 00:00:462019-09-05 08:06:18News from the Alliance of Business Immigration Lawyers Vol. 10, No. 11B • November 15, 2014

News from the Alliance of Business Immigration Lawyers Vol. 10, No. 11A • November 01, 2014

November 01, 2014/in Immigration Insider /by ABIL

Headlines:

1. Labor Cert News: Atlanta NPC No Longer Forwarding to BALCA All PERM Requests for Reconsideration; Statistical Updates for FY 2014 Q4; H-1B Legacy Docs No Longer Available – The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently announced news on several topics.

2. U.S. Court of Appeals for D.C. Circuit Reverses District Court in Specialized Knowledge Case – The U.S. Court of Appeals for the District of Columbia Circuit recently reversed and remanded the district court’s grant of summary judgment to the government in Fogo de Chao (Holdings) Inc. v. U.S. Department of Homeland Security.

3. USCIS To Implement Haitian Family Reunification Parole Program – USCIS will offer certain eligible Haitian beneficiaries of already approved family-based immigrant visa petitions, who are currently in Haiti, an opportunity to come to the United States up to approximately two years before their immigrant visa priority dates become current.

4. USCIS Extends TPS for Honduras, Nicaragua – For those who have already been granted TPS under the Honduras or Nicaragua designations, the 60-day re-registration period ends on December 15, 2014.

5. ABIL Global: France – The government has finalized its draft of the Law on the Rights of Foreigners in France. Also, France has adopted a law to combat fraud in the framework of posted workers.

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. Labor Cert News: Atlanta NPC No Longer Forwarding to BALCA All PERM Requests for Reconsideration; Statistical Updates for FY 2014 Q4; H-1B Legacy Docs No Longer Available

The Department of Labor’s Office of Foreign Labor Certification (OFLC) recently announced the following news:

Atlanta NPC change in process. As of October 27, 2014, the Atlanta National Processing Center will no longer automatically forward to the Board of Alien Labor Certification Appeals (BALCA) all PERM Requests for Reconsideration where the original case decision was upheld. Rather, a Notice of Decision will be issued when the case is upheld, and the employer must affirmatively request review before BALCA no later than 30 calendar days after the date the Notice of Decision is issued.

ANNOUNCEMENT

Statistical updates for FY 2014 Q4. OFLC has issued updated program fact sheets with selected statistics for the permanent labor certification program, prevailing wage determination program, H-1B temporary visa program, H-2A temporary agricultural visa program, and H-2B temporary nonagricultural visa program. Reports are derived from program data as of September 30, 2014.

UPDATED FACT SHEETS

H-1B legacy records no longer available. On July 8, 2013, the National Archives and Records Administration (NARA) approved OFLC’s revised retention schedule following a 30-day period of public notice and review. NARA determined that employer applications for labor certification and supporting documentation, whether retained in paper or electronic form, are temporary records and subject to destruction. The OFLC-approved disposition schedule authorizes the retention of records for five years after the date a final determination letter is issued or final action occurs, such as a withdrawn application, subject to an active investigation or litigation hold.

The records NARA identified as permanent records are the annual disclosure data files at http://www.flcdatacenter.com, as well as the quarterly disclosure data files and the OFLC Annual Reports on the OFLC Performance page.

Labor Condition Applications (LCAs) retained in the LCA Online System are all beyond the retention period of five years from a date of final determination or final action. Therefore, effective October 17, 2014, the LCA Online System has been decommissioned.

The OFLC said it will no longer respond to inquiries to search for records in response to Freedom of Information Act requests, or provide information for requests for duplicate certifications for LCA applications processed in the LCA Online System, in keeping with the OFLC records schedule.

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2. U.S. Court of Appeals for D.C. Circuit Reverses District Court in Specialized Knowledge Case

The U.S. Court of Appeals for the District of Columbia Circuit recently reversed and remanded the district court’s grant of summary judgment to the government in Fogo de Chao (Holdings) Inc. v. U.S. Department of Homeland Security.

The court noted that Fogo de Chao owns numerous Brazilian steakhouses that focus on the churrasco, a traditional festive style of preparing and serving meat derived from the gaucho culture of the Rio Grande do Sul region of southern Brazil. Following its success in Brazil, Fogo de Chao entered the U.S. market in 1997 and now has restaurants in 16 cities in the United States.

From 1997 to 2006, the Department of Homeland Security granted Fogo de Chao more than 200 L-1B visas for its churrasqueiro chefs to work in its U.S. restaurants. In 2010, Fogo de Chao sought to transfer another such chef, Rones Gasparetto, to the United States, reasoning that his distinctive cultural background and extensive experience cooking and serving meals in the churrasco style constituted “specialized knowledge.” The Administrative Appeals Office (AAO) concluded, however, that Mr. Gasparetto’s cultural background, knowledge, and training did not constitute specialized knowledge as a matter of law.

The D.C. Circuit held that it was unable to discern either a “sufficiently reasoned path” in the AAO’s strict bar against culturally based skills or “substantial evidence supporting its factual finding” that Mr. Gasparetto did not complete the company training program. The court also referred to the government’s dismissal of Fogo de Chao’s argument that it would suffer economic hardship if it had to train another employee to perform the chef’s duties. The court noted: “Consideration of evidence of this type provides some predictability to a comparative analysis otherwise relatively devoid of settled guideposts….That specialized knowledge may ultimately be a ‘relative and empty idea which cannot have plain meaning’…is not a feature to be celebrated and certainly not a license for the government to apply a sliding scale of specialness that varies from petition to petition without explanation. Suddenly departing from policy guidance and rejecting outright the relevance of Fogo de Chao’s evidence of economic inconvenience threatens just that.”

The appeals court generally noted, among other things, that deference is generally due to an agency’s interpretation of a statute it administers and its own implementing regulations. No deference was due here, however, because the agency’s “specialized knowledge” regulation merely restated the statute and added nothing of its own in which to ground an interpretation to which a court might defer. The AAO’s decision, and any legal interpretations contained within it, “were the product of informal adjudication within [U.S. Citizenship and Immigration Services] rather than a formal adjudication or notice-and-comment rulemaking.” Finally, the court did not find the government’s arguments persuasive and agreed with Fogo de Chao that the agency’s conclusion regarding the categorical irrelevance of culturally acquired knowledge was insufficiently reasoned to be sustained.

D.C. CIRCUIT’S DECISION

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3. USCIS To Implement Haitian Family Reunification Parole Program

Starting in early 2015, U.S. Citizenship and Immigration Services (USCIS) will begin implementing the Haitian Family Reunification Parole (HFRP) Program to expedite family reunification for certain eligible Haitian family members of U.S. citizens and lawful permanent residents and to promote safe, legal, and orderly migration from Haiti to the United States.

Under this program, USCIS will offer certain eligible Haitian beneficiaries of already approved family-based immigrant visa petitions, who are currently in Haiti, an opportunity to come to the United States up to approximately two years before their immigrant visa priority dates become current.

Deputy Secretary of Homeland Security Alejandro Mayorkas noted, “The United States strongly discourages individuals in Haiti from undertaking life-threatening and illegal maritime journeys to the United States. Such individuals will not qualify for the HFRP program and if located at sea may be returned to Haiti.”

USCIS noted that legal authority for the HFRP program is provided under the Immigration and Nationality Act, which authorizes the Secretary of Homeland Security to parole into the United States certain individuals, on a case-by-case basis, for urgent humanitarian reasons or significant public benefit. This is the same legal authority used to establish the Cuban Family Reunification Parole program in 2007.

USCIS is not accepting HFRP program applications now, and the agency said that potential beneficiaries should not take any action at this time. USCIS said it will provide full program details before the end of this calendar year, and stakeholder engagements will take place shortly thereafter. In early 2015, the Department of State’s National Visa Center (NVC) will begin contacting certain U.S. citizens or lawful permanent residents with approved petitions for Haitian family members, offer them the opportunity to apply for the program, and provide instructions. Only individuals who receive a written notice of program eligibility from NVC will be eligible to apply.

Under the Haitian Family Reunification Parole program, Haitians authorized parole will be allowed to enter the United States and apply for work permits but will not receive permanent resident status any earlier.

NOTICE

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4. USCIS Extends TPS for Honduras, Nicaragua

U.S. Citizenship and Immigration Services has announced that the designations of Honduras and Nicaragua for temporary protected status (TPS) have been extended for 18 months, from January 6, 2015, through July 5, 2016.

For those who have already been granted TPS under the Honduras or Nicaragua designations, the 60-day re-registration period ends on December 15, 2014. USCIS will issue new employment authorization documents (EADs) with a July 5, 2016, expiration date to eligible Honduras and Nicaragua TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the time frames involved with processing TPS re-registration applications, USCIS recognizes that not all re-registrants will receive new EADs before their current EADs expire on January 5, 2015. Accordingly, USCIS is automatically extending the validity of EADs issued under the TPS designation of Honduras and Nicaragua for six months, through July 5, 2015. The Federal Register notices explain how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on the employment eligibility verification (Form I-9) and E-Verify processes.

USCIS also set forth procedures necessary for nationals of Honduras or Nicaragua (or those having no nationality who last habitually resided in Honduras or Nicaragua) to re-register for TPS and to apply for renewal of their EADs with USCIS. Re-registration is limited to persons who have previously registered for TPS under the designation of Honduras or Nicaragua and whose applications have been granted. Certain nationals of Honduras and Nicaragua (or those having no nationality who last habitually resided in Honduras or Nicaragua) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions, if they meet: (1) at least one of the late initial filing criteria; and (2) all TPS eligibility criteria, including continuous residence in the United States since December 30, 1998, and continuous physical presence in the United States since January 5, 1999.

HONDURAS NOTICE

NICARAGUA NOTICE

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5. ABIL Global: France

The government has finalized its draft of the Law on the Rights of Foreigners in France. Also, France has adopted a law to combat fraud in the framework of posted workers.

Draft Law on Rights of Foreigners

The government has finalized and published its draft of the Law on the Rights of Foreigners in France, which is a significant overhaul of the Code of Entry and Stay of Foreigners and of Asylum (CESEDA). The new law would increase the use of multi-annual permits to stay, create new immigration categories, and eliminate the work permit requirement for assignments of less than three months.

Below are highlights of the major changes of interest to human resource and mobility managers. The draft law is not yet scheduled for parliamentary debate, which is expected to occur in upcoming months.

Purpose of the Draft Law

The government aims to reduce the workload for civil servants and the compliance burden on business, and to attract qualified foreign nationals and investments to France. The draft law achieves these three goals by: (1) increasing the use of multi-annual permits to stay, thus reducing the renewals of the current one-year permit to stay (Carte de Séjour Temporaire); (2) creating a new multi-annual “supra” category, the Talent Passport, which overhauls many existing categories and creates some new ones that will be of interest to business; and (3) eliminating the temporary work permit (APT) requirement for foreigners assigned to France for less than three months.

Increased Use of Multi-Annual Permits

Currently, most third-country nationals are issued a one-year renewable permit to stay. The renewal process requires multiple personal appearances and issuance of temporary documents (récépissés).

The draft law provides for the issuance of multi-annual permits with a maximum validity of four years, after the expiration of the initial one-year permit, to the extent the third-country national has demonstrated his or her willingness to adhere to French cultural and republican values.

The draft law provides that trainees, self-employed professionals, and visitors will not benefit from the multi-annual permit.

Talent Passport

Currently, there are several categories to attract talent and investment. The draft law merges the existing categories into the Talent Passport. This “supra” category includes a total of nine categories with a maximum validity of four years:

1. Young Qualified Graduate (jeune diplômé qualifié): Requires: (i) a master’s or doctorate-level degree earned in France or sponsorship by an employer qualified as an Innovating Start-Up (jeune entreprise innovante) by the Fiscal Code; (ii) a French employment contract; and (iii) a threshold salary determined by decree. This is a new category.

2. Highly Qualified Worker (travailleur hautement qualifié): Requires: (i) a three-year university degree or five years of experience; (ii) a French employment contract of at least 12 months; and (iii) a threshold salary determined by decree. This category absorbs the previous European Blue Card without substantial change.

3. Inter-Company Transferee (ICT) (salarié en mission): Requires: (i) an intra-group transfer; (ii) a three-month prior employment; and (iii) a threshold salary determined by decree. Under the existing scheme, the three-month prior employment is not required when the ICT becomes a French employee. This category absorbs the previous ICT category without any other substantial change.

4. Scientist (chercheur): Requires: (i) a master’s level or higher degree; (ii) tasks of research or teaching at the university level; and (iii) an agreement with a government-approved body. This category absorbs the previous Scientist category, with no significant change.

5. Entrepreneur (créateur d’entreprise): Requires: (i) a master’s-level degree or five years of experience; and (ii) creation of an enterprise in accordance with criteria to be determined by government decree. This is a new category.

6. Investor (investisseur): Requires a direct investment in infrastructure, as determined by government decree. This category absorbs the previous Exceptional Economic Contribution. The amount of investment is expected to be lowered from €10,000,000 to €500,000 and the number of jobs to be created from 50 to 10.

7. Executive Officer (mandataire social): Requires: (i) nomination of a legal representative or executive officer of an entity registered in France; and (ii) a threshold income to be defined by decree. This category was previously covered under Competence and Talent and does not change substantially.

8. Artist (artiste): Requires: (i) a contract approved by the cultural (DRAC) or labor (SMOE) authorities for an artistic or cultural activity; and (ii) threshold compensation to be defined by decree. This preexisting category is being merged here without substantial change.

9. Foreigner Renowned Internationally in a scientific, literary, intellectual, educational, or sports domain (étranger ayant une renommée internationale dans un domaine scientifique, littéraire, intellectuel, éducatif, ou sportif): Requires: (i) international fame; and (ii) an activity in France in one of the stated areas. This pre-existing category is being merged here with changes to be determined by implementing regulations.

Activities 1, 2, 3, 8, and 9 may be exercised without a separate work permit. In case of involuntary loss of employment, the permit will be extended for one year. Beyond that, the validity will be limited to the remaining period of unemployment benefits.

The accompanying spouse and minor children reaching majority will be issued a multi-annual permit for the duration of the validity of the principal holder of the Talent Passport. Such derivative permit will allow work.

Elimination of the Temporary Work Permit (APT)

The draft law proposes the elimination of the temporary work permit currently required for assignments of less than three months. The impact study accompanying the draft law states that short assignments need to be declared under existing regulations, which are adequate tools to verify a posteriori the legality of such assignments. The elimination of the temporary work permit is a controversial proposition and will be debated in the months to come.

New Law to Combat Fraud in Framework of Posted Workers

A posted worker is one sent by a company in one EU member state to provide short-term services for a company (client or affiliate) in the host EU member state. France’s Act of July 10, 2014 (Act) against unfair social competition translates into French law a directive of the European Union (EU) of May 15, 2014, laying down a set of mechanisms to prevent and punish any violation or circumvention of posting procedures in the EU.

Most of these provisions are incorporated into the code of labor with immediate application.

Declaration of Posting

The Act strengthens the compulsory nature of the posting declaration, which was already required by Articles R. 1263-3 and the Labor Code. The employer sends a statement of detachment to the labor inspectorate having jurisdiction over the work site. The user or the client who contracts with the foreign service provider must ensure that a compliant declaration has been made. In the absence of a compliant declaration, the end user and contracting parties may be jointly and severally liable for payment of an administrative fine of up to €2,000 per posted employee. This penalty may be increased to €4,000 in case of repeated violations. The total amount of the fine may not exceed €10,000. The Act provides that the declaration of posting must be recorded in the statutory register of personnel of the company that hosts posted workers.

Due Diligence and Financial Responsibility of the Payer

The Act strengthens due diligence and accountability of the user or client. The user or client has an obligation of “vigilance” with respect to the collective housing conditions of employees of the provider. In case of failure, the user or client may be required to defray the costs of the collective accommodations of employees.

The required diligence of the user or client also applies to compliance by all contractual parties with labor laws. In case of noncompliance, the user or client must order the other party to comply and, if the noncompliance persists, inform the public authorities. If the user or client breaches these obligations, it is subject to a penalty prescribed by decree of the Conseil d’Etat. In case of noncompliance with payment of minimum wages or if the user or client has failed to fulfill its obligations to order compliance and inform the authorities of noncompliance if it persists, it may be held jointly and severally liable for payment of salaries, allowances, and charges.

Online Publication of Sentences

The Act provides for the publication of court penalty sentences for a period of up to two years on a dedicated website.

Unions’ Right to Sue

The Act creates the right of union representatives to defend before the courts the rights of a posted employee without having to show a power of attorney from that employee. It is sufficient that the employee be informed and not object within 15 days. The employee can always intervene in the proceedings initiated by the union and stop them at any time.

Consequences for Foreign Employers of Posted Employees

These new control mechanisms and sanctions apply to all foreign employers of employees posted to France. The foreign employer posting employees as part of a service to a client in France should therefore ensure its compliance with labor laws applicable in France, including regulations on collective accommodations. In the event of noncompliance, the foreign employer may receive an order from the user or French client to stop the offense. Moreover, if the user or client does not issue a compliance order when appropriate or inform the authorities of persistent noncompliance, such user or client company may itself be penalized in France and be held severally liable for the cost of collective accommodations or payment of salaries, allowances, and expenses payable as compensation to the posted worker.

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6. New Publications and Items of Interest

USCIS updates DACA FAQs. USCIS updated its Frequently Asked Questions (FAQs) on Deferred Action for Childhood Arrivals on October 23, 2014. LATEST FAQs

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.

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 BLOG

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7. Member News

Laura Danielson recently authored “Same-Sex Couples Finally Gain Immigration Benefits After Repeal of DOMA,” which was published in Lavender, October 30-November 12, 2014.

Mark Ivener presented on “EB-5 Investor Green Cards” at Destination Los Angeles, sponsored by Arcadia Association of Realtors, Pasadena, California, on October 2, 2014.

H. Ronald Klasko was the keynote speaker at the 2014 Overseas Investment & International Wealth Management Forum in Beijing. Mr. Klasko discussed best practices for EB-5 regional centers and the impact of the China EB-5 quota retrogression. Mr. Klasko was the delegate for the Association to Invest in the USA (IIUSA) 2014 trade mission to CIFIT (18th annual China International Fair for Investment & Trade in Xiamen, China).

Sharon Mehlman spoke on a panel, “The Latest Administrative, Legislative and Political Updates Affecting Worksite Enforcement,” at the 4th Annual Worksite Compliance Symposium, Stanford University, Rock Center for Corporate Governance, in Palo Alto, California, on October 28, 2014.

Cyrus Mehta recently authored a practice advisory, “Ethical Issues in Representing Children in Immigration Proceedings.” Mr. Mehta is chair of the American Immigration Lawyers Association’s National Ethics Committee.

Mr. Mehta also authored a recent blog entry, “Fogo de Chao v. DHS: A Significant Decision For L-1B Specialized Knowledge Chefs And Beyond”

Angelo Paparelli recently authored a new blog entry. “Immigration ‘Fire on the Ground’—What’s Next for the L-1B Visa?”

Stephen Yale-Loehr will moderate an EB-5 immigrant investor forum sponsored by the New York Federal Reserve Board on November 18, 2014, in Rochester, New York. FOR MORE INFORMATION OR TO REGISTER

Mr. Yale-Loehr was quoted in an article, “No Good Options for GOP on Obama’s Immigration Move,” published on October 30, 2014, on Time.com. Commenting on the possibility that Republicans may sue President Obama if he exercises discretion to prevent undocumented immigrants from being removed, Mr. Yale-Loehr noted that the President has “wide discretion when it comes to immigration.” He added that expanding Deferred Action for Childhood Arrivals, one of the possible options, falls “within the president’s inherent immigration authority.”

Mr. Yale-Loehr spoke on October 30, 2014, at a NAFSA bi-regional conference in Albany, New York, on questions international students should ask potential employers when applying for jobs. MORE INFORMATION ABOUT THE CONFERENCE

The following Alliance of Business Immigration Lawyers were listed in Best Lawyers 2015:

ABIL U.S. members:
Francis Chin
Laura Danielson
Rami Fakhoury
Bryan Funai
Steve Garfinkel
Kehrela Hodkinson
Mark Ivener
H. Ronald Klasko
Charles Kuck
Vincent Lau
Robert Loughran
Sharon Mehlman
Cyrus Mehta
John Nahajzer
Angelo Paparelli
Julie Pearl
William Reich
Bernard Wolfsdorf
Stephen Yale-Loehr

ABIL Global members:
Enrique Arellano
Bernard Caris
Maria Celebi
Eugene Chow
Arnold Conyer
Laura Devine
Avi Gomberg
Kenneth Ing
Jelle Kroes
Gunther Mävers
Marco Mazzeschi
Ariel Orrego-Villacorta
Nicolas Rollason
Maria Isa Soter
Karl Waheed
Chris Watters

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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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https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png 0 0 ABIL https://www.abil.com/cygnus/wp-content/uploads/2021/09/ABIL_Logo-2021.png ABIL2014-11-01 00:00:032019-09-05 08:10:15News from the Alliance of Business Immigration Lawyers Vol. 10, No. 11A • November 01, 2014

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News

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  • News from the Alliance of Business Immigration Lawyers Vol. 15, No. 9D • September 22, 2019
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