News from the Alliance of Business Immigration Lawyers Vol. 10, No. 11A • November 01, 2014
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
- 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
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:
H. Ronald Klasko
ABIL Global members:
Maria Isa Soter
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