News from the Alliance of Business Immigration Lawyers Vol. 11, No. 4A • April 01, 2015
1. Reminder: File H-1B Petitions Early! -USCIS said it expects to receive more petitions than the H-1B cap during the first five business days of this year’s program, which began on April 1.
2. USCIS Updates L-1B ‘Specialized Knowledge’ Guidance -The memo provides guidance on how L-1B petitioners may demonstrate that an employee has specialized knowledge.
3. USCIS Provides Guidance on Adjudication of H-1B Petitions for Nursing Occupations -The memorandum assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation.
4. NLRB Updates Procedures on Addressing Immigration Issues During Unfair Labor Practice Proceedings -The National Labor Relations Board’s (NLRB) Office of the General Counsel recently updated its procedures for addressing immigration status issues arising during unfair labor practice (ULP) proceedings.
5. Obama Announces Enforcement Push on April 1, GOP Objects, As Per Usual -President Barack Obama announced on April Fool’s Day that the U.S. borders and ports of entry (POEs) will henceforth be closed to all newcomers, and that this new executive action will be strictly enforced. Republicans objected.
6. ABIL Global: Turkey -There have been recent changes in Assembly, Maintenance and Service visas in Turkey.
7. New Publications and Items of Interest -New Publications and Items of Interest
8. ABIL Member/Firm News -ABIL Member/Firm News
9. Government Agency Links –Government Agency Links
1. Reminder: File H-1B Petitions Early!
On April 1, 2015, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions subject to the fiscal year (FY) 2016 cap. USCIS said it expects to receive more petitions than the H-1B cap during the first five business days of this year’s program. The Alliance of Business Immigration Lawyers (ABIL) recommends filing during the first five business days in April.
If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed.
Contact your ABIL member for help with H-1B applications.
USCIS has released an optional checklist for I-129 H-1B filings.
USCIS encourages H-1B applicants to subscribe to the H-1B Cap Season email updates.
2. USCIS Updates L-1B ‘Specialized Knowledge’ Guidance
U.S. Citizenship and Immigration Services (USCIS) has issued interim policy guidance on L-1B “specialized knowledge” adjudications that supersedes and rescinds certain prior L-1B memoranda. USCIS said it is issuing this memorandum now for public review and feedback. . USCIS will finalize the guidance effective August 31, 2015. The memo provides guidance on how L-1B petitioners may demonstrate that an employee has specialized knowledge. In the case of off-site employment, it also clarifies how to comply with the requirements of the L-1 Visa (Intracompany Transferee) Reform Act of 2004.
Among other things, the memo notes that a beneficiary must possess either special or advanced knowledge, or both. Determining whether a beneficiary has “special knowledge” requires review of the beneficiary’s knowledge of how the company manufactures, produces, or develops its products, services, research, equipment, techniques, management, or other interests. Determinations concerning “advanced knowledge,” on the other hand, require review of the beneficiary’s knowledge of the specific employing company’s processes and procedures, the memo states. While the beneficiary may have general knowledge of processes and procedures common to the industry, USCIS’s focus is primarily on the processes and procedures used specifically by the beneficiary’s employer. With respect to either special or advanced knowledge, the petitioner ordinarily must demonstrate that the beneficiary’s knowledge is not commonly held throughout the particular industry or within the petitioning employer. As discussed in detail in the memo, however, such knowledge need not be proprietary in nature or narrowly held within the employer’s organization.
The memo notes the following non-exhaustive list of factors USCIS may consider when determining whether a beneficiary’s knowledge is specialized:
- The beneficiary is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations.
- The beneficiary possesses knowledge that is particularly beneficial to the employer’s competitiveness in the marketplace.
- The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position.
- The beneficiary’s claimed specialized knowledge normally can be gained only through prior experience with that employer.
- The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).
- The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the firm.
The memo notes that specialized knowledge cannot be easily imparted to other individuals.
Commentary. The Alliance of Business Immigration Lawyers notes that some language on page 14 of the memo could still snare L-1Bs working at third-party clients, and this will continue to plague Indian-heritage IT companies.
Workers at third-party sites must be implementing the specialized knowledge of the petitioner’s unique products or services. Specialized knowledge derived from customized products or services rendered to the client may complement but cannot substitute for specialized knowledge of the petitioner’s products, services, or methodologies. Sometimes the specialized knowledge is intertwined. For example, the petitioner customized the product or application for the client, and the L-1B is being sent to the United States to upgrade it. Even though the product or application was rendered to the client, the beneficiary possesses specialized knowledge of the product that was customized for the client. This fact pattern could potentially cause problems.
The memo, which includes details on types of evidence to present and information on off-site employment. Comments are due to USCIS by May 8.
3. USCIS Provides Guidance on Adjudication of H-1B Petitions for Nursing Occupations
U.S. Citizenship and Immigration Services (USCIS) recently released guidance on the adjudication of H-1B petitions for nursing position. The memorandum assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation. The memo supersedes any previous guidance on the subject.
The memo notes that the private sector is increasingly showing a preference for more highly educated nurses. Registered nurses’ (RN) duties and titles often depend on where they work and the patients with whom they work. Nursing work can focus on specific areas, such as addiction, cardiovascular, critical care, emergency room, genetics, neonatology, nephrology, oncology, pediatric, operating room, and rehabilitation. The memo states that depending on the facts of the case, some of these RN positions may qualify as specialty occupations.
An advanced practice registered nurse (APRN) defines a level of nursing practice that uses extended and expanded skills, experience, and knowledge in assessment, planning, implementation, diagnosis, and evaluation of the care required. Positions that require certified APRNs “will generally be specialty occupations due to the advanced level of education and training required for certification.” Having a degree is not by itself sufficient to qualify a position as an H-1B, the memo notes. The burden is on the petitioner to establish eligibility, but the memo provided a non-exhaustive list of APRN occupations that may satisfy the requirements for a specialty occupation, including Certified Nurse-Midwife, Certified Clinical Nurse Specialist, Certified Nurse Practitioner, and Certified Registered Nurse Anesthetist.
Evidence submitted by a petitioner may include the nature of the petitioner’s business; a description of industry practices; a detailed description of the duties to be performed within the petitioner’s business operations; advanced certification requirements; American Nurses Credentialing Center Magnet Recognized status (explained in the memo); clinical experience requirements; training in the specialty requirements; and wage rate relative to others within the occupation.
MEMO, which includes additional details
4. NLRB Updates Procedures on Addressing Immigration Issues During Unfair Labor Practice Proceedings
The National Labor Relations Board’s (NLRB) Office of the General Counsel recently updated its procedures for addressing immigration status issues arising during unfair labor practice (ULP) proceedings. In a memorandum released February 27, 2015, to the field, Richard F. Griffin, Jr., NLRB General Counsel, noted that although the National Labor Relations Act (NLRA) protects all covered employees regardless of immigration status, related issues may affect remedies and present obstacles to enforcing the NLRA.
The new memo provides updated procedures that apply when immigration status issues are raised during NLRB investigations and proceedings. The new procedures require that regions immediately contact the assigned representative(s) in the Division of Operations-Management as soon as they become aware that immigration status issues may affect the ability to remedy or litigate a potential ULP violation. Operations-Management will: (1) provide technical assistance; (2) determine whether interagency engagement could assist in effectuating the NLRA; (3) discuss with the region and/or ask the region to submit to advice on whether it may be appropriate to seek certain additional remedies; and (4) coordinate the agency’s response to these issues.
The memo states that in cases where immigration status issues may affect the NLRB’s ability to remedy or litigate a potential ULP violation, Operations-Management will work with the region to determine whether:
- potential discriminatee(s) and/or witness(es) could be eligible for a U or T visa, or for deferred action, and whether the NLRB should certify and/or facilitate this process;
- it is appropriate to refer the case to the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices pursuant to the NLRB-OSC’s Memorandum of Understanding;
- it is appropriate to engage with the Department of Homeland Security regarding their enforcement operations.
In meritorious cases, Operations-Management and, where appropriate, the Division of Advice will consider whether additional remedies should be sought to address potential limitations on back pay and reinstatement that may arise. The memo states that in this regard, the region should also explore and bring to the attention of Operations-Management any alternative remedies the region seeks and/or that a charging party advances as necessary or appropriate.
MEMO (scroll down to GC 15-03, “Updated Procedures in Addressing Immigration Status Issues That Arise During ULP Proceedings,” February 27, 2015).
5. Obama Announces Enforcement Push on April 1, GOP Objects, As Per Usual
President Barack Obama announced on April 1, 2015, that the U.S. borders and ports of entry (POEs) will henceforth be closed to all newcomers, and that this new executive action will be strictly enforced. He explained that this was to enhance enforcement and counterterrorism efforts, to keep the country safe from the “wrong element,” and to protect American jobs. He added that he finally “gets” that it’s simply the manly man thing to do and he wants to appear more forceful. “I get it,” he said. “We can’t be weak, just letting people in willy-nilly.”
Among other things, in an emergency budget allocation, Obama reallocated $852 billion to erect a very large (huge, actually) fence along the southern border and send border patrol agents with scowls on their faces and big, impressive weapons still smoking from other operations to defend the border 24-7, taking potshots at anything that moves. “My final gift to America,” he said. He sat back and waited for Republicans to congratulate him. “Now I’ve got ’em. They can’t possibly object to this!” he reportedly whispered gleefully to Vice President Joe Biden while the mic was still on.
Immediately after the press conference announcing the new executive actions, however, Republicans in Congress objected, stating that this was just a gimmick and we should be more welcoming. “President Obama seems to have forgotten that this is a nation of immigrants,” new presidential candidate Sen. Ted Cruz announced. “I myself was born to a Cuban father. Mitt Romney was born in Mexico, and John McCain was born in Panama. President Obama and the Democrats need to get their heads out of the heartland. He needs to stop being a cowboy, and a weak tyrant, or something. He just doesn’t get it. Imagine a country where people can flourish, regardless of where they come from.” President Obama pleaded, “But I thought enforcement is what you wanted all along. That’s what you all kept saying. ‘Enforcement this, enforcement that,’ right?? I’m just trying to meet you halfway. Okay, 200 percent of the way. Whatever.” Retorted House Speaker John Boehner, “That was yesterday. This is today, and this means war!”
Republicans shortly afterward filed a lawsuit challenging the new actions, stating that President Obama is simply too American and just doesn’t get it. Radio personality Rush Limbaugh huffed and puffed and said we should blow that fence down. Donald Trump, remarking that it had suddenly gotten very windy across America, held onto his toupee. The WTOP Radio meteorologist issued a toupee and comb-over alert. Sarah Palin noted that Obama has gone all “forcy-forcy. Actually, I kinda like it! Got it? You betcha,” she said.
Happy April Fool’s Day!
6. ABIL Global: Turkey
There have been recent changes in Assembly, Maintenance and Service visas in Turkey.
Turkey amended its work permit regulations in January 2015 with respect to Assembly, Maintenance and Service (AMS) visas. An AMS visa is a short-term (90-day) technical work visa for foreign employees, under certain conditions, to engage in assembly, maintenance, service, or technical training work for the benefit of a Turkish company without the need for a work permit. This visa is a very practical category for many companies in the technology, construction, and energy sectors because it generally has a very low documentary burden and is adjudicated solely at the consular post, most often within a few days.
Historically, the problem with this visa category was twofold: (1) the 90-day period was calculated consecutively within a year and (2) the visas were generally issued as single entry. Therefore, unless an assignee remained in Turkey for the entire 90-day period uninterrupted, the full 90 days per year could not be used.
On January 22, 2015, the work permit regulations were changed to now state that AMS visa holders can remain for up to three months in total within a year. And the regulations now allow foreigners with an AMS visa to enter Turkey on multiple occasions provided that they do not remain in Turkey more than three months in total within a year.
The change in the wording of the regulation appears to convey that the 90-day period will now be calculated cumulatively over the period of a year, not consecutively. It also states that these visa holders should be granted multiple entries, which is welcome news regardless of the calculation of the 90 days, particularly since the vast majority of consular posts issue single-entry AMS visas.
In the meantime, it is best practice to provide a copy of the legal changes to the consular post when applying for an AMS visa in order to insist that consular posts follow this regulatory change and grant one-year multiple-entry AMS visas. However, the calculation of the 90-day period (cumulative vs. consecutive), is in the hands of the passport officers at entry points to confer later entries for AMS visa holders whose period is beyond 90 days consecutively (yet have not been present in Turkey for 90 days cumulatively). AMS visa holders should anticipate that some consular officers and passport officers will not have full awareness or knowledge of this legal change for some time.
7. New Publications and Items of Interest
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 (ABIL) 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 for:
- 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 blogs are available at http://www.abilblog.com/.
8. ABIL Member/Firm News
Various ABIL members were named to Human Resource Executive‘s “Most Powerful Employment Attorneys” list in the immigration field for 2015. The list will be featured in the June 16, 2015, issue. The magazine states that only those who earn “glowing marks from clients, peers, colleagues and judges are awarded the distinction.”
Mark Ivener has co-authored an e-book, EB-5 Visas: International Investors & U.S. Taxes, available from Amazon.
Klasko Immigration Law Partners will hold its 11th annual Spring Seminar, “Immigration 2015: Hope Springs Eternal,” on Wednesday, April 22, 2015, from 9:30 am to 2 pm. For more information or to register.
Charles Kuck is the attorney for 39 plaintiffs in a case seeking in-state tuition for young immigrants in Georgia without legal status. The Georgia Court of Appeals rejected an appeal on March 19, 2015. Mr. Kuck said he would appeal to the Georgia Supreme Court. In a statement, he said, “The day that residents of Georgia cannot seek redress in court for the state’s action against them is a sad day for all Georgians. We will appeal this decision and continue our fight for tuition equity on all available fronts.” The article was published in the Atlanta Journal-Constitution.
Mr. Kuck was quoted in an article in Quartz on March 25, 2015, noting that U.S. Immigration and Customs Enforcement has raised bond prices and instituted no-bond policies at some detention centers. “What we’re missing here is the little bit of mercy that always must come with justice to make the laws just.” The article, “U.S. Promised To Deport Felons, Not Families—But That’s Not What’s Happening.”
Vincent Lau has several upcoming speaking engagements:
- May 15-16, 2015, Federal Bar Association’s 2015 Immigration Law Conference, Panel 1: “Hot Topics in PERM”; Panel 2: “Advanced Employment-Based Permanent Residency”
- June 17-19, 2015, 2015 AILA Annual Conference, “Fundamentals of PERM”
Robert F. Loughran presented on the effects of President Obama’s executive actions on Forms I-9 and E-Verify, at the Foster Spring 2015 Immigration Update Seminars in San Antonio and Austin, Texas. His panel also discussed details of the Deferred Action for Parental Accountability (DAPA) program and the newly expanded Deferred Action for Childhood Arrivals (DACA) program, as well as Former Texas Governor Rick Perry’s RP80 executive order mandating E-Verify for certain state agencies and their contractors.
Mr. Loughran provided expert testimony before the Texas Senate against potential anti-immigration bills in the current legislative session. Mr. Loughran’s appearance came at the request of the Immigration Task Force of the Greater Houston Partnership.
Mr. Loughran appeared on Austin’s KEYE ABC affiliate to speak about the impact of “Sanctuary City” legislation.
Mr. Loughran presented Executive Actions on Immigration on February 4, 2015, as part of the Greater Houston Partnership’s Continuing Education Series. For more information.
Cyrus Mehta has authored or co-authored several new blog entries. “America Cannot Be Open for Business Through an H-1B Visa Lottery” “The Reason for L-1B Denial Rates Being Higher for Indian Nationals”
Mr. Mehta spoke at the following events:
- Panelist, “Ethical and Practical Issues in Representing Children in Immigration Cases,” American Immigration Lawyers Association (AILA) Philadelphia Chapter’s 2015 CLE Conference, Philadelphia, Pennsylvania, March 27, 2015
- Program Chair, “Basic Immigration Law 2015,” Practising Law Institute, New York City and live webcast, March 12, 2015
- Panelist, “Alternatives to H-1B,” 2015 Midwest Regional Conference, AILA, Chicago, Illinois, March 9, 2015
Cora-Ann V. Pestaina, an associate attorney in Mr. Mehta’s office, has authored a new blog entry. “BALCA Says Economic Benefits Should Be Listed in PERM Recruitment”
Angelo Paparelli will speak on “What’s New in EB-5 Practice” at the 2015 AILA Rome District Chapter Spring Conference in Rome, Italy, on April 29, 2015. For more information or to register.
Mr. Paparelli was quoted in a Law360.com article, “DHS Deputy Accused of Playing Favorites in EB-5 Program,” published on March 24, 2015. In reference to the Office of Inspector General’s investigation into allegations that Deputy Secretary of Homeland Security Alejandro Mayorkas had exerted improper influence on EB-5 application processing, Mr. Paparelli said he believed that Mr. Mayorkas’ character was being “unfairly impugned” and that Mr. Mayorkas is of “the highest integrity.” Mr. Paparelli noted that during Mr. Mayorkas’ tenure at USCIS, he made “significant strides in many, many different program areas.” Mr. Paparelli said that “grousers” are “trying to make something where I believe nothing exists,” and that there were political motivations at play. The article is available by registering HERE.
Mr. Paparelli was quoted in “Immigration Executive Actions An Ethical Minefield for Attys,” published on March 16, 2015, in Law360. He noted that determining whether a consultation before enactment of an executive action is advisable includes a judgment about the individual client’s capabilities and needs. “If I’m dealing with a high-net-worth individual that can afford to spend a lot of time gazing into the immigration crystal ball, I don’t think there should be limitations. Then again, if you’re spending someone’s entire life savings and now they can’t afford the benefit, you’re going to be looked at with a jaundiced eye.” He also noted the potential Catch-22 if an attorney represents both an employer and an individual when there may be conflicts. “I endeavor to represent only one party, because the potential for harm if a lawyer is caught in the crossfire of a major dispute is great.” In the employment context, Mr. Paparelli says he lets the individual worker know that he only represents the company, “which has agreed to pay my fees and provide immigration support as a fringe benefit, but not a legal service.”
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