News from the Alliance of Business Immigration Lawyers Vol. 11, No. 2B • February 15, 2015
Headlines:
1. Expanded DACA Starts February 18, USCIS Updates FAQ – Expanded DACA extends the deferred action period and employment authorization to three years from two years, and allows those to be considered for DACA if they meet certain conditions.
2. H-2B Cap Reached for First Half of FY 2015 – USCIS said that it is rejecting new cap-subject H-2B petitions received after January 26 and that request an employment start date before April 1.
3. Nebraska Joins E-Verify RIDE Program – The RIDE program allows E-Verify to validate the authenticity of driver’s licenses and state identification cards that employees present as identity documents for employment eligibility verification.
4. ABIL Submits Immigration Reform Proposals to USCIS – ABIL submitted comments on immigration policy to the U.S. Departments of State and Homeland Security in response to a Federal Register notice. ABIL included proposals on modernizing the U.S. immigrant and nonimmigrant visa system, including proposals for a right to counsel in person or electronically whenever an individual is interviewed by federal immigration authorities.
5. ABIL Pro Bono: Miller Mayer – Miller Mayer is helping a Cornell University student group aid Iraqi refugees, including many military translators, in resettling and applying for visas to the United States.
6. New Publications and Items of Interest – New Publications and Items of Interest
7. ABIL Member/Firm News – ABIL Member/Firm News
8. Government Agency Links – Government Agency Links
Details:
1. Expanded DACA Starts February 18, USCIS Updates FAQ
On February 11, 2015, U.S. Citizenship and Immigration Services (USCIS) updated its frequently asked questions (FAQ) to include information on expanded Deferred Action for Childhood Arrivals (DACA), effective February 18, 2015.
Expanded DACA extends the deferred action period and employment authorization to three years from two years, and allows those to be considered for DACA if they:
- Entered the United States before the age of 16;
- Have lived in the United States continuously since at least January 1, 2010 (rather than the previous requirement of June 15, 2007);
- Are of any age (removes the requirement to have been born since June 15, 1981); and
- Meet all other DACA guidelines.
USCIS noted that on February 18, 2015, the agency will begin accepting a new version of Form I-821D. USCIS will accept the edition dated 6/04/14 until April 20, 2015. After April 20, 2015, USCIS will accept only the new Form I-821D. The new version is very similar to the previous version of the I-821D, but has been revised to reflect the expanded DACA guidelines. Although USCIS will not accept requests for DACA under the new guidelines until February 18, USCIS suggested that individuals can begin to prepare their requests by gathering relevant evidence.
On November 20, 2014, President Obama also announced that, within six months, USCIS would begin accepting requests for Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA). Persons may be considered for DAPA if they:
- Have lived in the United States continuously since January 1, 2010, up to the present time;
- Were physically present in the United States on November 20, 2014, and at the time of requesting consideration for DAPA with USCIS;
- Had no lawful status on November 20, 2014;
- Had, on November 20, 2014, a son or daughter, of any age or marital status, who is a U.S. citizen or lawful permanent resident; and
- Have not been convicted of a felony, significant misdemeanor, or three or more other misdemeanors; do not otherwise pose a threat to national security; and are not an enforcement priority for removal.
INFORMATION ON RECENT EXECUTIVE ACTIONS ON IMMIGRATION
2. H-2B Cap Reached for First Half of FY 2015
USCIS has received a sufficient number of petitions to reach the congressionally mandated limit, or cap, of 33,000 on the total number of foreign nationals who may seek a visa or otherwise obtain H-2B status (nonagricultural temporary workers) for the first half of fiscal year (FY) 2015. January 26, 2015 was the final receipt date for new H-2B worker petitions requesting an employment start date before April 1, 2015.
USCIS said that it is rejecting new cap-subject H-2B petitions received after January 26 and that request an employment start date before April 1. No cap numbers from the first half of FY 2015 will be available in the second half of FY 2015, which begins on April 1, 2015. The cap is 33,000 for the second half also.
USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap.
MORE INFORMATION ON CAP COUNT FOR H-2B NONIMMIGRANTS
3. Nebraska Joins E-Verify RIDE Program
On February 1, 2015, Nebraska became the latest state to join E-Verify’s Records and Information from DMVs (RIDE) program. The other participating states are Mississippi, Florida, Idaho, and Iowa. RIDE links E-Verify with state departments of motor vehicles and state public safety offices. The program allows E-Verify to validate the authenticity of driver’s licenses and state identification cards that employees present as identity documents for Form I-9, Employment Eligibility Verification.
U.S. Citizenship and Immigration Services notes that driver’s licenses and ID cards account for nearly 80 percent of the documents used as proof of identity by employees for E-Verify.
FACT SHEETS ON STATE PROGRAMS The fact sheets include descriptions and images showing typical examples of driver’s licenses in each participating state.
4. ABIL Submits Immigration Reform Proposals to USCIS
The Alliance of Business Immigration Lawyers (ABIL) submitted comments on immigration policy on January 29, 2015, to the U.S. Departments of State (DOS) and Homeland Security (DHS). The comments, which respond to a notice published in 79 Fed. Reg. 78458 (Dec. 30, 2014), included proposals on modernizing the U.S. immigrant and nonimmigrant visa system.
ABIL proposed several general administrative reforms to reduce the complexity of the immigration system, promote program integrity and transparency, and stem fraud and abuse, including:
- creating a single administrative tribunal for all immigration appeals, to harmonize and reconcile the “crazy quilt” of immigration legal interpretations issued by various administrative tribunals;
- expanding access to legal counsel whenever an individual is interviewed by federal immigration authorities;
- eliminating the systemic penalties and consequences of regulations that chill the right of administrative and judicial appeal;
- adopting an expansive definition of immigration successorship in interest;
- creating an agency to support and protect the economic benefits of immigration within the Department of Commerce or another cabinet department;
- creating explicit immigration protections and benefits for small businesses;
- establishing an IRS-style “private-letter-ruling” procedure for immigration stakeholders;
- developing a streamlined, fast-track process for immigration guidance; and
- deferring I-9 and IRCA enforcement when employees intend to file for DACA or DAPA.
ABIL also addressed various questions DOS and DHS posed. In response to a query about the most important policy and operational changes that would streamline and improve the processing of visas at U.S. embassies and consulates, ABIL recommended expanding the I-601 provisional waiver program and allowing consular reviewability on a pilot basis for immigrant visas and specific employment-based nonimmigrant visa categories, and expanding the nonimmigrant visa reissuance program. To streamline and improve USCIS processing of visa petitions, ABIL recommended clarifying L-1B adjudications; establishing more predictability in E-2 adjudications; granting work authorization to more nonimmigrant spouses; extending the H-1B cap gap fix to J-1 exchange visitors; and allocating national interest waiver green cards to qualifying regions to stimulate the U.S. economy.
Among other things, DOS and DHS also asked what policy and operational changes would attract the world’s most talented entrepreneurs who want to start and grow businesses in the United States. ABIL recommended that DHS partner with states that wish to attract talented entrepreneurs from overseas. ABIL noted, for example, that Massachusetts has launched a “Global Entrepreneur in Residence” (GEIR) program. The GEIR facilitates partnerships with institutions of higher education to provide part-time work opportunities to foreign graduates who are entrepreneurs and want to grow their companies but cannot remain in the United States due to the H-1B visa cap. A university, as a cap-exempt employer, can sponsor a foreign national who will not be counted toward the numerical limitations. Nonprofit affiliates to institutions of higher education can also qualify as cap-exempt employers.
ABIL also suggested that USCIS make the H-1B visa process easier for entrepreneurs who have founded their own startups. Instead of requiring separate ownership and control over the entrepreneur, which may require an entrepreneur “who has given sweat and tears in organizing a startup…to cede all control in exchange for the H-1B visa,” USCIS should follow decisions that recognize the separate existence of a corporation as a distinct legal entity. As such, a corporation, even if it is owned and operated by a single person, may hire that person, and the parties will be in an employer-employee relationship.
ABIL’s recommendations on the EB-5 immigrant investor visa process included reducing processing times for EB-5 project applications; expediting I-526 processing for investors in an approved project; processing all I-526s in the same project together; implementing a separate processing queue for investors subject to quota retrogression; and having a separate processing line for direct EB-5 investors.
Finally, ABIL recommended substantially revamping the information technology infrastructure used for immigration benefits, including achieving interoperability of separate online databases maintained by disparate federal immigration agencies. ABIL also said that all electronic forms should include data fields that allow unlimited entry of text, since many questions cannot be answered fully with just “yes” or “no.”
ABIL COMMENTS, which contain additional recommendations and details.
5. ABIL Pro Bono: Miller Mayer
Miller Mayer is helping a Cornell student group aid Iraqi refugees, including many military translators, in resettling and applying for visas to the United States.
Miller Mayer has been aiding the Cornell chapter of the Iraqi Refugee Assistance Project (IRAP) to expand its reach. IRAP is run by students and helps Middle East refugees resettle in the United States and other countries. Immigration attorneys help IRAP members to research legal issues, file visa applications, and appeal denied applications. Most of the refugees helped are Iraqi and Afghan military interpreters and translators working with U.S. and Coalition Forces. With the assistance of Alliance of Business Immigration Attorneys member and co-founder Stephen Yale-Loehr, Miller Mayer’s work has enabled IRAP to add clients and thus enlarge its mission.
ARTICLE about IRAP’s work and Miller Mayer’s assistance.
6. New Publications and Items of Interest
USCIS Ombudsman teleconference on employment-based immigration. U.S. Citizenship and Immigration Services’ (USCIS) Ombudsman’s office will hold a teleconference on February 19, 2015, from 2 to 3 pm, on H-1B and H-2 temporary workers and the role of USCIS, the Department of Labor, and the Department of State during the highly compressed time frames required by these petitions. Ombudsman Maria Odom will lead the discussion. Q&A will follow the presentation. To register, send an e-mail with “Employment-Based Programs” in the subject line by February 16 to [email protected]. Teleconference call-in information will be provided upon RSVP.
State challenges to federal enforcement of immigration law. The Congressional Research Service has published “State Challenges to Federal Enforcement of Immigration Law: Historical Precedents and Pending Litigation.” The report notes, among other things, that many states’ constitutional and statutory claims challenging the federal government on immigration matters have failed in the past. Some of the reasons for failure have included the claims’ having involved nonjusticiable “political questions” or that the actions in question were committed to agency discretion by law and thus not reviewable by the courts. The report also describes the challenge brought by over 20 states in 2014 to the recently announced expansion of DACA. The report concludes by exploring how the pending litigation resembles, and differs from, the prior litigation.
E-Verify for executives webinar. USCIS will hold a webinar for executives on February 25, 2015, at 2 pm ET, addressing high-level questions about E-Verify. MORE INFORMATION TO REGISTER
More languages for E-Verify employee rights video. USCIS and the Department of Homeland Security’s Office for Civil Rights and Civil Liberties have updated the E-Verify “Employee Rights and Responsibilities” video with closed captioning in six additional languages: Chinese (traditional), French, Korean, Russian, Tagalog, and Vietnamese (click on the video link, then “CC” at the bottom to reveal the captions). VIDEO (click on “Video: Employee Rights and Responsibilities”), VIDEO (click on the language and then the video link), and VIDEO.
E-Verify employee rights webinar. USCIS will hold an Employment Eligibility Verification Employee Rights Webinar on February 26, 2015, at 1 pm ET (English) or February 18, 2015, at 3 pm (Spanish). TO REGISTER (English) TO REGISTER (Spanish)
Educational video for employers about Salvadoran TPS. The U.S. Department of Justice recently launched an educational video reminding employers that Salvadorans with temporary protected status (TPS) may continue working beyond the March 9, 2015, expiration date of their employment authorization documents. The video also cautions employers that requesting additional documents from these workers may violate anti-discrimination law. The announcement of the video includes additional details.
EB-5 stakeholders call on source-of-funds RFEs. USCIS will hold an EB-5 stakeholders call on source-of-funds requests for evidence (RFEs) on February 26, 2015, from 1 to 2:15 pm ET. The topic will be lawful sources of funds used for capital investment in the EB-5 program. USCIS will discuss common reasons why petitioners receive RFEs and types of evidence that are helpful to submit. Participants will have the opportunity to share their experiences in demonstrating a lawful source of funds for capital investment. MEETING NOTICE TO REGISTER. If you have any questions about participating, or if you do not receive a confirmation email within two business days after registering, email [email protected].
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
7. ABIL Member/Firm News
Robert F. Loughran presented Executive Actions on Immigration on February 4, 2015, as part of the Greater Houston Partnership’s Continuing Education Series. MORE INFORMATION
Cyrus Mehta has co-authored several new blog entries. “Who is ‘Lawfully Present’ Under the Affordable Care Act?” “Myth or Reality: Is the DHS Truly Serious About Visa Modernization for the 21st Century?”
Mr. Mehta was interviewed on BBC World News about President Obama’s executive actions on immigration.
Angelo Paparelli has published a new blog entry on crowd-sourcing in immigration, “Immigration on a Clean Slate: Game-Changing Proposals on Visa Modernization”
Stephen Yale-Loehr was quoted in The New Indian Express on February 15, 2015, in an article about green cards and the diversity visa lottery, “The Green Signal for a New Life in the Land of Opportunity.” Mr. Yale-Loehr said, “A lottery is not a good way to organize an immigration system. It doesn’t strengthen family bonds, it is not conducive to our economic interests and it doesn’t rescue any refugees. Congress should abolish the program.”
Mr. Yale-Loehr recently authored “What EB-5 Investors Need To Know About the CSPA,” which was published in Bender’s Immigration Bulletin, available by subscription to LexisNexis.
Mr. Yale-Loehr and H. Ronald Klasko will speak at an EB-5 Innovation Summit on February 24, 2015, in New York City sponsored by NES Financial. FOR MORE INFORMATION OR TO REGISTER.
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