News from the Alliance of Business Immigration Lawyers Vol. 11, No. 6B • June 15, 2015

Headlines:

1. State Dept. Reports Visa, Passport System Errors -The Bureau of Consular Affairs reported technical problems with overseas passport and visa systems.

2. USCIS Reopens FY 2015 H-2B Cap for Temporary Nonagricultural Workers -On June 5, 2015, USCIS reopened the congressionally mandated fiscal year 2015 cap and is accepting petitions requesting new H-2B temporary nonagricultural workers with an employment start date between April 1 and September 30, 2015.

3. Green Cards Don’t Always Have Signatures, USCIS Reminds -When the agency issues a green card without a signature, the card will say “Signature Waived” on the front and back of the card where a signature would normally be located.

4. Agencies Investigate H-1B Outsourcing Firms; Layoffs Provoke Controversy -Several companies have been in the spotlight recently due to hiring H-1B workers and laying off U.S. workers in similar positions.

5. USCIS Releases Processing Times at International Offices -On June 9, 2015, USCIS began publishing processing times for certain benefits processed at its international offices and International Operations Division headquarters.

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. State Dept. Reports Visa, Passport System Errors

The Department of State’s Bureau of Consular Affairs reported on June 12, 2015, technical problems with overseas passport and visa systems. The issue was not specific to any particular country, citizenship document, or visa category.

The Bureau reported that it was “working urgently to correct the problems” in the Consular Consolidated Database (CCD) “and restore our system to full operational status as soon as possible.” Some applicants experienced delays or were unable to obtain passports overseas, consular reports of birth abroad, or U.S. visas. Domestic passport issuances were not affected, the agency said, adding that “[w]e are able to issue emergency passports to U.S. citizens overseas for urgent travel.”

The Bureau also said it was seeking to assist nonimmigrant visa applicants with urgent humanitarian travel. Travelers with an urgent humanitarian need for travel should contact their nearest U.S. embassy or consulate, the agency said. Pending overseas adoption cases, including in China, were being prioritized.

ANNOUNCEMENT. The Bureau said it would post updates as more information becomes available.

2. USCIS Reopens FY 2015 H-2B Cap for Temporary Nonagricultural Workers

On June 5, 2015, USCIS reopened the congressionally mandated fiscal year (FY) 2015 cap and is accepting petitions requesting new H-2B temporary nonagricultural workers with an employment start date between April 1 and September 30, 2015.

USCIS explained that its role in managing the H-2B cap involves ensuring that enough Form
I-129 (Petition for a Nonimmigrant Worker) H-2B petitions with a sufficient number of beneficiaries have been approved to fully subscribe the H-2B cap each year. The agency noted that “[i]t can be difficult to estimate in advance how many beneficiaries of an H-2B petition approved by USCIS will actually seek H-2B status or eventually be issued an H-2B visa” by the Department of State (DOS). USCIS said it “strives to reasonably estimate the number of petitions the agency may approve before the annual cap will be reached.”

USCIS said it continues to work in collaboration with DOS to monitor the issuance of H-2B visas. On April 2, 2015, USCIS announced that it had accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000 H-2B visas. From June 3, 2014, through March 26, 2015, USCIS accepted about 3,900 petitions (about 77,000 beneficiaries) toward the H-2B FY 2015 cap. USCIS initially believed this was sufficient to fully meet the FY 2015 cap. However, USCIS has determined that as of June 5, 2015, DOS received fewer than the expected number of requests for H-2B visas. A recent analysis of DOS H-2B visa issuance and USCIS petition data revealed that the number of actual H-2B visas issued by DOS was substantially less than the number of H-2B beneficiaries seeking consular notification listed on cap-subject H-2B petitions approved by USCIS. In light of this new information, USCIS determined that there were still available H-2B visa numbers remaining for the second half of the FY 2015 cap.

Filing procedures. On June 5, 2015, USCIS began accepting additional FY 2015 cap petitions with employment start dates between April 1 and September 30, 2015, and is considering them in the order in which USCIS receives them.

To petition for an FY 2015 H-2B cap number, employers must:

Submit an I-129 with all required documents, including an approved Temporary Labor Certification (TLC) from the Department of Labor that is valid for the entire employment period stated on the petition.
Indicate an employment start date between April 1 and September 30, 2015.

USCIS noted that the employment start date listed on the petition must be the same as the employment start date authorized on the TLC unless a petitioner is filing an amended H-2B petition due to the unavailability of originally requested workers as stated on the previously approved TLC. Petitioners may still use TLCs for which the employment start date occurred on or after April 1, 2015, even if the start date occurred during the closure of the FY 2015 H-2B cap. Such TLC, however, must still be otherwise valid, and the employment start date on the petition must match the employment start date authorized on the TLC. Petitions with employment start dates that do not match their TLCs’ employment start dates will be rejected and returned with fees, USCIS said.

USCIS noted that it will consider petitions received on or after October 1, 2015, and/or requesting a start date on or after that date, toward the FY 2016 H-2B cap. These petitions will be subject to all eligibility requirements for FY 2016 H-2B cap filings. USCIS started accepting FY 2016 H-2B cap petitions on June 3, 2015.

ANNOUNCEMENT

3. Green Cards Don’t Always Have Signatures, USCIS Reminds

U.S. Citizenship and Immigration Services (USCIS) recently issued a reminder that green cards (Permanent Resident Cards) do not always include the holder’s signature.

In limited cases, USCIS may waive the signature requirement for certain people, such as children under the age of consent or individuals who are physically unable to provide a signature. Also, since February 2015, USCIS has been waiving the signature requirement for people entering the United States for the first time as lawful permanent residents after obtaining an immigrant visa abroad from a U.S. embassy or consulate.

When the agency issues a green card without a signature, the card will say “Signature Waived” on the front and back of the card where a signature would normally be located.

ANNOUNCEMENT

4. Agencies Investigate H-1B Outsourcing Firms; Layoffs Provoke Controversy

Several companies have been in the spotlight recently due to hiring H-1B workers and laying off U.S. workers in similar positions.

According to reports, the Departments of Labor (DOL) and Justice (DOJ) are investigating several companies for possible labor and immigration law violations. The companies include several Indian outsourcing firms that provided H-1B workers to Southern California Edison (SCE), a power company. The latter company hired Infosys and Tata Consultancy Services to bring in H-1B workers and laid off hundreds of U.S. workers, some of whom said they had to train their replacements.

DOL sent a letter to Rep. Judy Chu (D-Cal.) on June 10, 2015, stating that the agency “has recently opened investigations related to Tata and Infosys’ provision of H-1B workers to SCE.” DOL also noted in the letter that it had “recently referred allegations concerning SCE and its contractor consultants to the Office of Special Counsel for Immigration-Related Unfair Employment Practices” at DOJ.

Meanwhile, U.S. Citizenship and Immigration Services (USCIS) sent a letter to Rep. Chu dated May 29, 2015, saying the agency was following up on concerns such as those Rep. Chu had raised “regarding [SCE] to ensure that petitions are entirely consistent with our legal framework.” The letter said USCIS would “work with the Department of Labor to review visa petitions and labor condition and certification applications, as appropriate.”

The labor condition application (LCA) instructions in ETA Form 9035CP state, among other things, “The employer attests that H-1B, H-1B1 or E-3 foreign workers in the named occupation will not adversely affect the working conditions of workers similarly employed. The employer further attests that nonimmigrants will be afforded working conditions on the same basis, and in accordance with the same criteria, as offered to U.S. workers.”

At Disney, where a reorganization included laying off up to several hundred U.S. workers and hiring H-1B workers, according to reports, one laid-off IT worker complained that “[s]ome of these folks were literally flown in the day before to take over the exact same job I was doing.” He said he had trained his replacement. Reportedly, about 120 of the workers found new jobs at Disney but the rest did not.

5. USCIS Releases Processing Times at International Offices

On June 9, 2015, U.S. Citizenship and Immigration Services (USCIS) began publishing processing times for certain benefits processed at its international offices and International Operations Division headquarters. USCIS said those with cases before USCIS “can use this information to better manage their expectations for when their cases will be processed at USCIS offices. We will update this information every quarter.”

MORE INFORMATION

6. New Publications and Items of Interest

USCIS webinar on naturalization. U.S. Citizenship and Immigration Services (USCIS) will hold a webinar on Wednesday, June 17, from 2 to 3 p.m. (ET) about the naturalization process. USCIS representatives will provide an overview of the application process, including eligibility requirements, and answer questions. Case-specific inquiries will not be addressed during the webinar. REGISTRATION. If you have any questions regarding the registration process please email us at [email protected].

The 2015 edition of the Global Business Immigration Practice Guide has just 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 chapters on Ghana and Peru. 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, Singapore, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed to be used by:

Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

An overview of the immigration law requirements and procedures for over 20 countries;
Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
A general overview of the appropriate options for a particular employee; and
Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $359, 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.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS

7. ABIL Member/Firm News

Several members of the Alliance of Business Immigration Lawyers (ABIL) will speak at the American Immigration Lawyers Association’s annual conference June 17-20, 2015, in Washington, DC. Among them are:

Maria Celebi, “Filing a Family IV Petition Abroad—Navigating the Direct Consular Filing”
Laura Danielson, “If I Had a Million Dollars—Fundamentals of EB-5 Investor Visas”; Robert Aronson from Ms. Danielson’s office, “OMG, I Have an IMG! Working With International Medical Graduates,” and Debra Schneider, also from Ms. Danielson’s office, ” Non-PERM Employment-Based Options”
Bryan Funai, “The Consular Posts Strike Back—Advanced Consular Processing Issues for Business Visas”
Kehrela Hodkinson, “Non-Immigrant and Immigrant Waivers of Inadmissibility Fundamentals”
Mark Ivener, ” Contingency Planning for Attorneys—The Ethics of Extended Leave, Disability, and Death”
H. Ronald Klasko, “Advanced EB-5 Panel,” Dan Lundy from Mr. Klasko’s office, “Intermediate EB-5 Panel,” and William Stock from Mr. Klasko’s office, “Hot Topics with the AILA National Officers” and “Put the Smart Phone Down: Networking and the Art of the Schmooze”
Vincent Lau, “PERM Fundamentals—Part I”
Robert Loughran, “Renunciation, Relinquishment and Loss of Citizenship,” and from Foster LLP: Charles C. Foster, “The 50^th Anniversary of the Immigration Reform Act of 1965″; Sandra I. Dorsthorst, “Getting’ Cozy With Blanket L-1 Visas”; Helene N. Dang, “Building the Narrative—Drafting a Successful Petition and Getting It Right the First Time.”
Sharon Mehlman, “Immigration and Healthcare – Everything You Need To Know About How The ACA Impacts Your Clients” and “Hot Topics Panel With the AILA National Officers”
Cyrus Mehta, “Immigration and Healthcare—Everything You Need To Know About How The ACA Impacts Your Clients,” ” AILA Ethics Compendium Session,” and ” Beyond Deferred Action: Is Permanent Residence An Option”
Angelo A. Paparelli, “When Size Matters—Entrepreneurs/Start-Ups/Small Business Panel”
Julie Pearl will speak with William Stock on “Networking and the Art of Schmooze”
William Reich, “From STDs to TB to Ebola—Medical Grounds of Inadmissibility”
Lynn Susser, “The ‘Business’ of Dealing with CBP” and Greg Siskind from Ms. Susser’s office, “Ethics and Practice Management in the Digital Age” and “Beware of Marrying a J-1!!! J-1 Family Members and Waiver of § 212(e) Based on Hardship”
Bernard Wolfsdorf, “The Consular Posts Strike Back—Advanced Consular Processing Issues for Business Visas”
Stephen Yale-Loehr, moderator, “Behind Closed Doors—An Insider’s Perspective on the Immigration Legislative Process,” and Carolyn Leefrom Mr. Yale-Loehr’s office, “If I Had a Million Dollars—Fundamentals of EB-5 Investor Visas”

CONFERENCE PROGRAM

Mr. Mehta’s latest blog entry, “Putting Disney and H-1B Visas in Perspective,” was cited in the Times of India in “U.S. To Probe TCS, Infosys on Visas.” He noted that in hiring H-1B workers, the employer “has to pay the higher of the prevailing wage or the actual wage it pays similarly situated workers, and so it is generally difficult for an H-1B worker to replace a U.S. worker because they are cheaper.”

Mr. Mehta was interviewed on CNBC in a segment about skilled foreign workers and H-1B visas.

Mr. Paparelli has published a new blog entry. “Eyes Off the Prize: White House Oblivious to Immigration Bureaucrats’ Running Out the Clock”

Mr. Paparelli was quoted in Law360 on June 4, 2015, in “Despite Disney Dust-Up, H-1B Visa Program Rarely Misused.” He noted that the use of consultants in IT is widespread in the United States, with many domestic companies and even the U.S. government contracting for such services. “This is a prevalent, lawful, legitimate practice,” he said.

Mr. Yale-Loehr was quoted on June 12, 2015, in China Daily USA, in “Diplomacy Could Hold Key to Fugitive Case.” The article discusses economic fugitives from China who are seeking asylum in the United States as they wait in a New Jersey jail. Mr. Yale-Loehr noted that “any asylum applicant must prove that they have at least a 10 percent chance of being persecuted in their home country because of their race, religion, nationality, political opinion, or membership in a particular social group. Simply being jailed for a crime isn’t persecution, but having your life threatened would be persecution.”

Mr. Yale-Loehr was quoted on June 10, 2015, in Der Frietag, a German business newspaper, about the need for immigration reform in the United States. GOOGLE AUTO TRANSLATION

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