News from the Alliance of Business Immigration Lawyers Vol. 11, No. 1A • January 01, 2015
Headlines:
1. President Announces Thaw in Relations With Cuba – The measures President Obama announced included, among other things, initiating discussions to re-establish diplomatic relations with Cuba, and facilitating an expansion of travel.
2. U.S. District Court Dismisses Sheriff’s Challenge to Obama’s Executive Action – The judge shot down the three main arguments the plaintiff made to support his motion for a preliminary injunction.
3. DOL Elaborates on Procedures Under Comite de Apoyo Decision Re H-2B Prevailing Wages – – In response to inquiries, the Department of Labor’s Office of Foreign Labor Certification recently elaborated on the procedures for implementing the decision in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis.
4. USCIS Adds Five Countries To H-2A, H-2B Visa Program Participation – The Czech Republic, Denmark, Madagascar, Portugal, and Sweden were added to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year.
5. DOL Announces 2015 H-2A Adverse Effect Wage Rates – The 2015 AEWRs, broken down by state, range from a low of $10 (Alabama) to a high of $13.59 (Kansas, Nebraska, North Dakota, and South Dakota).
6. ABIL Global: France – New work permit forms are effective January 1, 2015.
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. President Announces Thaw in Relations With Cuba
On December 17, 2014, President Barack Obama announced a thaw in the United States’ relations with Cuba. He noted that decades of U.S. isolation of Cuba have failed to accomplish any U.S. goals.
The measures President Obama announced included, among other things, initiating discussions to re-establish diplomatic relations with Cuba, and facilitating an expansion of travel under general licenses for the 12 existing categories of travel to Cuba authorized by law, including: (1) family visits; (2) official business of the U.S. government, foreign governments, and certain intergovernmental organizations; (3) journalistic activity; (4) professional research and professional meetings; (5) educational activities; (6) religious activities; (7) public performances, clinics, workshops, athletic and other competitions, and exhibitions; (8) support for the Cuban people; (9) humanitarian projects; (10) activities of private foundations or research or educational institutes; (11) exportation, importation, or transmission of information or information materials; and (12) certain export transactions that may be considered for authorization under existing regulations and guidelines.
Also announced was raising remittance levels from $500 to $2,000 per quarter for most donations to Cuban nationals, and other measures to facilitate trade and commerce.
2. U.S. District Court Dismisses Sheriff’s Challenge to Obama’s Executive Action
On December 23, 2014, Judge Beryl Howell of the U.S. District Court for the District of Columbia denied Maricopa County, Arizona, Sheriff Joseph Arpaio’s motion for a preliminary injunction against the United States and federal officials. Sheriff Arpaio’s suit alleged that certain immigration policies announced by President Barack Obama on November 20, 2014, are unconstitutional, otherwise illegal, and should be stopped from going into effect. The judge granted the U.S. government’s motion to dismiss for lack of subject matter jurisdiction.
Judge Howell noted that the suit “raises important questions regarding the nation’s immigration policies, which affect the lives of millions of individuals and their families. The wisdom and legality of these policies deserve careful and reasoned consideration.” She said that the key question in this case, however, “concerns the appropriate forum for where this national conversation should occur.” She raised the issue of standing, which she noted ensures that courts act as judges rather than policymakers. “The role of the Judiciary is to resolve cases and controversies properly brought by parties with a concrete and particularized injury—not to engage in policymaking better left to the political branches,” she said.
Sheriff Arpaio’s suit challenged, among other things, the Obama administration’s program launched in 2012 known as Deferred Action for Childhood Arrivals (DACA). The suit also challenged President Obama’s recent expansion of DACA and creation of a new program for deferred action for parents of U.S. citizens or lawful permanent residents (DAPA). Judge Howell noted that the executive branch has long used “deferred action” to implement enforcement policies and priorities. ” Under long-existing regulations, undocumented immigrants granted deferred action may apply for authorization to work in the United States,” she added, noting that “[f]or almost twenty years, the use of deferred action programs has been a staple of immigration enforcement.”
FULL TEXT of similar lawsuit filed by more than 20 states
THE OBAMA ADMINISTRATION’S MEMORANDA and a related White House address announcing the actions
MEMORANDA ON MODERNIZING AND STREAMLINING THE U.S. VISA SYSTEM
MEMORANDA ON ESTABLISHING A WHITE HOUSE TASK FORCE ON NEW AMERICANS
3. DOL Elaborates on Procedures Under Comite de Apoyo Decision Re H-2B Prevailing Wages
In response to inquiries, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) recently elaborated on the procedures for implementing the decision in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis, No. 14-3557 (3d Cir.). That decision invalidated DOL regulations authorizing employers to use employer-provided wage surveys for prevailing wage determinations for H-2B temporary foreign workers. The DOL stated:
Employers with a pending H-2B prevailing wage request: Employers who have a pending prevailing wage determination request that is based on an employer-provided survey may modify that request to use a Service Contract Act (SCA) or Davis Bacon Act (DBA) wage determination or a wage based on a Collective Bargaining Agreement (CBA). That request will not be treated as a new filing and the request will be processed based on the original filing date. The OFLC reminded employers that the request must specify precisely which SCA or DBA wage determination is being used or provide a copy of the Collective Bargaining Agreement. In the absence of such a request, the National Prevailing Wage Center (NPWC) will issue the prevailing wage determination based on the Occupational Employment Statistics (OES) mean for the occupation.
Employers who have received an H-2B prevailing wage determination: Employers who have already received a prevailing wage determination based on an employer-provided survey but who have not yet filed their application with the Chicago National Processing Center (NPC) may request a redetermination from the NPWC irrespective of the time limits set forth in 20 CFR § 655.10(g). An employer who has received a prevailing wage determination based on an employer-provided survey may use the survey-based wage rate in its recruiting, the OFLC said. Employers who have filed their application with the NPC, and whose applications are adjudicated favorably, will receive a supplemental prevailing wage determination (SPWD) based on the OES mean for the occupation, along with the certification. The SPWD will provide the opportunity to seek a redetermination under 20 CFR § 655.10(g). If, upon redetermination, the use of an alternative wage source (SCA, DBA, or CBA) is approved, the employer should return the original certification to the NPC and a new certification will be issued.
OFLC’s DECEMBER 23, 2014 ANNOUNCEMENT
4. USCIS Adds Five Countries To H-2A, H-2B Visa Program Participation
U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security, in consultation with the Department of State, have added the Czech Republic, Denmark, Madagascar, Portugal, and Sweden to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year. The notice listing the 68 eligible countries was published in the Federal Register on December 16, 2014.
The H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs, respectively. USCIS only approves H-2A and H-2B petitions for nationals of countries the Secretary of Homeland Security has designated as eligible to participate in the programs. USCIS may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.
ANNOUNCEMENT of 68 countries
FEDERAL REGISTER NOTICE of 68 countries
5. DOL Announces 2015 H-2A Adverse Effect Wage Rates
On December 19, 2014, the Department of Labor’s (DOL) Office of Foreign Labor Certification published a notice in the Federal Register announcing new Adverse Effect Wage Rates (AEWRs) for each state, based on the Farm Labor Survey conducted by the Department of Agriculture. The AEWRs are the minimum hourly wage rates the DOL has determined must be offered and paid by employers to H-2A foreign agricultural workers and workers in corresponding employment for a particular agricultural job and area, so that the wages of similarly employed U.S. workers will not be adversely affected.
The 2015 AEWRs, broken down by state, range from a low of $10 (Alabama) to a high of $13.59 (Kansas, Nebraska, North Dakota, and South Dakota).
6. ABIL Global: France
New work permit forms are effective January 1, 2015.
For new work permit forms effective January 1, 2015, the employer abroad, the host company in France, and the employee now must provide additional information, summarized below.
Information Required From the Home Company Abroad
a) Registration number or employer ID number of the home company and the name of the registration authority (e.g., the commercial registry and the chamber of commerce).
b) Date of creation of the company.
c) Name of the legal representative of the home company.
d) Main activity of the home company.
e) For intra-company transferees, website or weblink to the Internet page showing the link between the home company and the French host company plus the date of acquisition or date of creation of the French affiliate company.
f) For the international provision of services, the total cost of the services to be provided and the copy of the service agreement between the employer and the client in France.
g) In the absence of a social security bilateral agreement between the home country and France, registration of the foreign employer with the French social security administration for payment of the French social security contribution. Evidence must include proof of registration with Centre National Firmes Etrangères (CNFE, Foreign Firms National Center) and Humanis International in the work permit application. However, these documents may not be available for the very first work permit application and clarification may be needed on what other documents may be provided in lieu of the registration certificates, such as a sworn statement from the employer.
Information Required From the Host Company in France
a) For intra-company transferees, the role of the French entity in the corporate group and the date on which the French entity came under control of the group or was formed.
b) Details of the agent representing the foreign employer in France for the purpose of co-coordinating the work permit application, and the entity responsible for paying the government fees.
c) In case of regulated activity, the identity of the regulating body, and proof and details of certification.
d) The monthly or annual gross salary applicable for an equivalent position in the host company (or in the sector of activity in case of international provision of services), excluding any payment-in-kind.
Information and Documents Required From the Employee
a) Copy of initial employment contract or, if not available, copy of the initial employment offer letter.
b) Copy of employment certificates from previous employers proving adequate professional experience (does not apply to intra-company transfers and secondments).
As noted above, starting January 1, 2015, work permit applications must be made on new forms. Work permits issued by the authorities before this date remain valid.
As some of the requirements may be difficult to fulfill immediately or in a timely manner, adjustments may be made during an interim period. Stay tuned.
7. New Publications and Items of Interest
USCIS teleconference on DACA expansion. U.S. Citizenship and Immigration Services will hold a “listening session” on Tuesday, January 13, 2015, from 2 to 3:30 p.m. (ET) to discuss the expansion of DACA as part of the recently announced executive actions on immigration. TO REGISTER, submit your e-mail address, then select “Subscriber Preferences” and select the “Event Registration” tab to provide your name and organization, then “Submit.” For more information or to ask about registration, email public.engagement@uscis.dhs.gov.
E-Verify webinar for executives. U.S. Citizenship and Immigration Services will present an “E-Verify for Executives” webinar on January 13 and 20 at 4 p.m. ET. MORE INFORMATION
New border wait time app. U.S. Customs and Border Protection has launched a Border Wait Time app to make it easier for travelers to plan their trips across the border. The app provides estimated wait times and open lane status at land ports of entry, allowing travelers to make an informed decision about where and when to cross the border. Wait times for pedestrian, passenger, and commercial vehicle crossings are broken down by lane type (e.g., standard, SENTRI, NEXUS, FAST, Ready Lane). Travelers can download the app at no charge from Apple’s App Store and Google Play. DETAILS
The latest 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 latest 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
8. Member News
Bernard Wolfsdorf has published a new blog entry, “EB-5 Predictions for 2015: The Year of the Goat”
Stephen Yale-Loehr was quoted in the Pittsburgh Post-Gazette in an article about the prospects for comprehensive immigration reform. Mr. Yale-Loehr stated that “the chances of comprehensive immigration reform being enacted in 2015 or 2016 are almost nil.” He noted that although many Republicans would like some kind of reform to attract more Latino voters, “they run into members of their party in the House where in their own districts, immigration is not an issue. That tension in the Republican Party will make it very hard for leaders like John Boehner to get a package that can move through the House.”
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