News from the Alliance of Business Immigration Lawyers Vol. 11, No. 9B • September 15, 2015

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Headlines:

1. USCIS, State Dept. Revise Procedures for Determining Visa Availability for Adjustment of Status Applicants -Applicants will be able to file adjustment applications before their priority dates become current, based on a new second chart in the Visa Bulletin listing when applications can be filed.

2. CBP Redesigns ESTA Website for Visa Waiver Program -Some of the new features include access to frequently asked questions at any time during the application process; a mobile-friendly design that allows VWP visitors to apply and check the status of their ESTA applications using a smartphone; translation capability at any point in the application by choosing one of 23 languages; and availability of the Group feature at the beginning of the application process to make it easier for families and groups to submit their applications at the same time.

3. United States Announces ‘Trusted Traveler’ Trilateral Agreement With Canada and Mexico -The new agreement outlines the first steps toward the creation of a North American Trusted Traveler network. The agreement is expected to make it easier for eligible travelers in the United States, Mexico, and Canada to apply for expedited screening programs.

4. DHS Designates Yemen for Temporary Protected Status -The 180-day TPS registration period began on September 3, 2015, and runs through March 1, 2016. The TPS designation for Yemen is effective September 3, 2015, through March 3, 2017.

5. New Publications and Items of Interest -New Publications and Items of Interest

6. ABIL Member/Firm News -ABIL Member/Firm News

7. Government Agency Links -Government Agency Links

Details:

1. USCIS, State Dept. Revise Procedures for Determining Visa Availability for Adjustment of Status Applicants

U.S. Citizenship and Immigration Services (USCIS), in coordination with the Department of State (DOS), is revising the procedures for determining visa availability for applicants waiting to file for employment-based or family-sponsored adjustment of status. Applicants will be able to file adjustment applications before their priority dates become current, based on a new second chart in the Visa Bulletin listing when adjustment applications can be filed. This change is expected to be particularly significant for Chinese (EB-2), Indian (EB-2), and Philippines (EB-3) applicants, who have experienced large backlogs.

USCIS said the revised process “will better align with procedures DOS uses for foreign nationals who seek to become U.S. permanent residents by applying for immigrant visas at U.S. consulates and embassies abroad.” USCIS also said the revised process will enhance DOS’s ability to predict more accurately overall immigrant visa demand and determine the cut-off dates for visa issuance published in the Visa Bulletin. “This will help ensure that the maximum number of immigrant visas are issued annually as intended by Congress, and minimize month-to-month fluctuations in Visa Bulletin final action dates,” USCIS said.

The Visa Bulletin revisions implement November 2014 executive actions on immigration announced by President Barack Obama and Secretary of Homeland Security Jeh Johnson.

The changes include two charts per visa preference category in the DOS Visa Bulletin:

  • Application Final Action Dates (dates when visas may finally be issued); and
  • Dates for Filing Applications (earliest dates when applicants may be able to apply).

Each month, in coordination with DOS, USCIS will monitor visa numbers and post the relevant DOS Visa Bulletin chart. USCIS said applicants can use the charts to determine when to file their Form I-485, Application to Register Permanent Residence or Adjust Status. To determine whether additional visas are available, USCIS will compare the number of visas available for the remainder of the fiscal year with:

  • Documentarily qualified visa applicants reported by DOS;
  • Pending adjustment of status applications reported by USCIS; and
  • Historical drop-off rate (for example, denials, withdrawals, abandonments).

The Visa Bulletin indicates when statutorily limited visas are available to prospective immigrants based on their individual priority dates. The priority date is generally the date when the applicant’s relative or employer filed the immigrant visa petition on the applicant’s behalf with USCIS. If a labor certification must be filed with the applicant’s immigrant visa petition, the priority date is when the labor certification application was accepted for processing by the Department of Labor.

Comments. The Alliance of Business Immigration Lawyers (ABIL) commends DOS and USCIS for announcing these important changes that will provide much needed relief to Indian, Chinese, and Philippines applicants who are caught in the backlogs, such as the ability to obtain employment authorization and more job mobility. Even beneficiaries of family-based petitions will be able to take advantage of these benefits, if they are eligible to file for adjustment of status in the U.S. ABIL also proposed this change in its comments on modernizing the U.S. immigrant and nonimmigrant visa system in response to a notice published in 79 Fed. Reg. 78458 (Dec. 30, 2014), summarized at https://www.abil.com/news_detail.cfm?NEWS_ID=1225.

Visa availability will no longer be defined by when visas are actually available. The October Visa Bulletin now views it more broadly as “dates for filing visa applications within a time frame justifying immediate action in the application process.” USCIS similarly views visa availability opaquely as including “eligible applicants” who “are able to take one of the final steps in the process of becoming U.S. permanent residents.” These new interpretations provide more flexibility for DOS to move the filing date even further, and make it closer to current. The new way of interpreting visa availability makes it possible to file an adjustment of status application, along with all the accompanying benefits, and to even lock in the age of a child under the Child Status Protection Act, whether the applicant is in the United States or processing at a U.S. consulate. While ABIL strongly advocates that the same interpretation concerning visa availability that applies to eligibility for adjustment of status should also apply to the CSPA, we need to await further confirmation from the government on CSPA eligibility.

Below are some preliminary observations after a brainstorming session with a few members of ABIL on September 9, 2015. While we await further guidance from DOS and USCIS to be sure, ABIL strongly advocates these positions:

  • I-485 adjustment applications filed under the new filing priority date will result in the same benefits: EAD, Advance Parole, 204(j) portability, and CSPA protection.
  • With respect to an “after acquired” spouse, where the principal already has a pending
    I-485, the spouse can file under the new filing priority date. Ultimately, both the principal’s and spouse’s I-485 application will be adjudicated when the priority date of the principal becomes current under the final action priority date.
  • There is no prohibition to filing a concurrent I-140/485 or I-130/485 under the filing priority date.
  • With respect to a priority date that has been captured from an old EB petition, the same rules apply—you have to see whether the captured priority date coincides with the filing priority date or the final action priority date.
  • There may be no need to submit a medical with an I-485 filed under the filing priority date, especially when there is a long interval (years) between the filing and the final action priority date.
  • The new policy applies to both family I-130 and employment I-140 petitions.
  • With respect to consular processing of cases, the filing priority date would be equally applicable, especially to lock in the age of a child under CSPA.
  • Do we have to rush to file all our I-485s in October 2015? The jury is not yet out whether the dual priority dates system will cause more backlogs and retrogression, although probably not, since the filing priority date, unlike the 2007 July Visa Bulletin, does not signify that visas are immediately available. We have enough time (around the 10th of the month) to wait and watch how the dates will progress in November and beyond.

This change may also create an interesting strategic consideration for H-4 spouses who are eligible for an EAD. Will it be better to obtain an EAD as an H-4 spouse or obtain an EAD/Advance Parole “combo” card based on an I-485 filing? There will be pros and cons to each approach depending on the specific individual’s situation.

ANNOUNCEMENT ABOUT THE CHANGE

ADDITIONAL INFORMATION ABOUT WHEN TO FILE AN ADJUSTMENT APPLICATION

The executive actions being implemented in the Visa Bulletin were detailed in the White House report, “Modernizing and Streamlining Our Legal Immigration System for the 21st Century,” issued in July 2015.

The changes are first appearing in the October 2015 Visa Bulletin.

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2. CBP Redesigns ESTA Website for Visa Waiver Program

U.S. Customs and Border Protection launched a redesigned Electronic System for Travel Authorization (ESTA) website for Visa Waiver Program (VWP) participants on September 10, 2015.

Some of the new features include access to frequently asked questions at any time during the application process; a mobile-friendly design that allows VWP visitors to apply and check the status of their ESTA applications using a smartphone; translation capability at any point in the application by choosing one of 23 languages; and availability of the Group feature at the beginning of the application process to make it easier for families and groups to submit their applications at the same time.

CBP said it conducted focus groups as part of the redesign process to better understand how to improve the website for the more than 19 million VWP visitors who use it each year. VWP visitors who have already applied for ESTA will be able to access their accounts on the new site. Travelers with valid ESTAs will not have to reapply for new ones until their current ESTAs expire or they receive new passports.

CBP noted that the VWP enables nationals of 38 designated countries to travel to the United States for tourism or business for stays of up to 90 days without first obtaining a visa. All nationals or citizens of VWP countries must have an approved ESTA before boarding a carrier to travel by air or sea to the United States under the VWP. ESTA applications should be submitted at least 72 hours before travel. Once approved, the ESTA is generally valid for up to two years or until the applicant’s passport expires. Authorizations are valid for multiple entries.

CBP’s ANNOUNCEMENT OF THE REDESIGN

REDESIGNED ESTA APPLICATION WEBSITE

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3. United States Announces ‘Trusted Traveler’ Trilateral Agreement With Canada and Mexico

The Department of Homeland Security (DHS) has joined Public Safety Canada and the Secretariat of Governance of Mexico in a trilateral agreement to expand “trusted traveler” programs. The new agreement, signed on July 10, 2015, outlines the first steps toward the creation of a North American Trusted Traveler network. The agreement is expected to make it easier for eligible travelers in the United States, Mexico, and Canada to apply for expedited screening programs.

As part of the agreement, Mexican nationals who are members of Mexico’s Viajero Confiable program will be able to apply for the U.S.-Canada NEXUS trusted traveler program, making them eligible for expedited screening benefits upon arrival at international airports in the United States and Canada. The arrangement will also allow Canadian citizens who are members of NEXUS to apply for Viajero Confiable, making them eligible for expedited screening benefits upon arrival at select international airports in Mexico. U.S. citizens are currently eligible to apply for the NEXUS and Viajero Confiable trusted traveler programs through existing partnerships between U.S. Customs and Border Protection (CBP), Public Safety Canada, and Mexico’s National Institute of Migration. Eligible travelers will be able to apply for each program beginning in 2016.

At the 2014 North American Leaders Summit in Toluca, Mexico, the leaders of the United States, Canada, and Mexico committed to the development of a trilateral trusted traveler network to facilitate air travel in North America. Facilitating secure air travel within North America is also a goal of the U.S.-Canada Beyond the Border initiative, the U.S.-Mexico 21st Century Border Management Initiative, and the U.S.-Mexico High-Level Economic Dialogue.

ANNOUNCEMENT

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4. DHS Designates Yemen for Temporary Protected Status

The Department of Homeland Security (DHS) has designated Yemen for temporary protected status (TPS) for 18 months due to the ongoing armed conflict within the country. Eligible nationals of Yemen residing in the United States may apply for TPS with U.S. Citizenship and Immigration Services (USCIS). The 180-day TPS registration period began on September 3, 2015, and runs through March 1, 2016. The TPS designation for Yemen is effective September 3, 2015, through March 3, 2017.

DHS noted that Yemen “is experiencing widespread conflict and a resulting severe humanitarian emergency, and requiring Yemeni nationals in the United States to return to Yemen would pose a serious threat to their personal safety.” The designation means that during the designated period, eligible nationals of Yemen (and people without nationality who last habitually resided in Yemen) who are approved for TPS will not be removed from the United States and may receive an Employment Authorization Document (EAD).

To be eligible for TPS, applicants must demonstrate that they satisfy all eligibility criteria, including that they have been both “continuously physically present” and “continuously residing” in the United States since September 3, 2015. Applicants will also undergo thorough security checks. Those with certain criminal records or who pose a threat to national security are not eligible for TPS.

USCIS ANNOUNCEMENT (English)

USCIS ANNOUNCEMENT (Arabic)

FEDERAL REGISTER NOTICE designating Yemen for TPS, and providing additional details about registering and eligibility

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5. New Publications and Items of Interest

Webinars on E-Verify. Upcoming webinars on various aspects of E-Verify are available. Customized sessions on the topic, date, and time of your choice are available by e-mailing E-VerifyOutreach@uscis.dhs.gov. INFORMATION ABOUT UPCOMING WEBINARS

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 a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. 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

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6. ABIL Member/Firm News

Several ABIL members and their colleagues were selected for inclusion in the 22nd Edition of The Best Lawyers in America in the practice area of Immigration Law:

Bruce Buchanan (of Siskind Susser, PC)
Laura Danielson
Steve Garfinkel
Mark Ivener
H. Ronald Klasko
Charles Kuck
Vincent Lau
Robert Loughran
Sharon Mehlman
John Nahajzer
Julie Pearl
William Reich
Gregory Siskind (of Siskind Susser, PC)
William A. Stock (of Klasko Immigration and Nationality Law, LLP)
Lynn Susser
Andrew Wilson (of Serotte Reich Wilson, LLP)
Bernard Wolfsdorf
Stephen Yale-Loehr

Mr. Klasko participated as a panel member on the topic of “Investing Cash from Loan Proceeds” at the 4th Annual California EB-5 Conference, hosted by EB5 Investors Magazine. He explained the new USCIS policy to deny EB-5 petitions when the collateral for indebtedness is not owned by the investor. The conference welcomed nearly 500 regional centers, attorneys, and EB-5 program stakeholders, who joined keynote speaker Bob Goodlatte (R-VA), U.S. House of Representatives Judiciary Committee Chairman, and special guest speaker Ed Rendell, former Governor of Pennsylvania.

Mr. Lau and Steve Clark will speak on “Navigating Complex Waters of U.S. Immigration” before the Consulate General of Canada on September 17, 2015.

Mr. Lau will speak on several other upcoming panels:

  • “H-1B Trends,” American Immigration Lawyers Association’s New England Chapter Meeting, September 24, 2015
  • “Startup in America: Guidance on Foreign Entrepreneurship in the U.S.,” MIT Alumni Leadership Conference, September 25, 2015
  • “Business Immigration Compliance Affecting Your Global Workforce,” co-sponsored by the Massachusetts Chapter of the Federal Bar Association and the Federal Bar Association Immigration Law Section, September 30, 2015
  • “How U.S. Immigration Law Can Benefit Your Corporate Clients,” National American Pacific American Bar Association Regional Conference, October 3, 2015
  • “H-1B Issues,” National Association of Foreign Student Advisors Regional Conference, Farmington, Connecticut, October 21, 2015
  • “Prevailing Wage Determinations—The Highs and Lows,” American Immigration Lawyers Association, national webinar, December 3, 2015

Cyrus Mehta has authored several new blog entries. “Godot Has Arrived: Early Adjustment of Status Applications Possible Under the October 2015 Visa Bulletin” “Board of Immigration Appeals Provides Safeguards for Asylum Applicant With Mental Competency Issues”

Angelo Paparelli was quoted in Law360 in “4 Ways China’s Crash May Alter U.S. Real Estate Investment.” He said, “If anything, the China stock market plunge has primed the EB-5 pump. Before, potential EB-5 investors may have held off to see how high their stock holdings might go before liquidating assets and signing up for the U.S. investor green card program.” Now, he said, Chinese investors seem to be liquidating stocks before their values fall further. “Their goal is to diversify the asset mix and acquire holdings abroad—preferably in promising commercial real estate deals.” He noted that “Chinese investors’ interest in the EB-5 program remains robust.”

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7. 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

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News from the Alliance of Business Immigration Lawyers Vol. 11, No. 9A • September 01, 2015

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Headlines:

1. New L-1B Memo Addresses Some Issues, But Concerns Remain -Some practitioners expressed concerns that the memo still gives adjudicators broad discretion to issue RFEs and denials.

2. USCIS Discontinues Legacy E-Filing System -After the legacy system is decommissioned and before the new system is fully operational, applicants must use paper forms for several categories.

3. DHS Extends TPS Designation for Haiti by 18 Months -Current TPS Haiti beneficiaries seeking to extend their TPS status must re-register during a 60-day period that runs through October 26, 2015.

4. Federal Prosecutors Drop Criminal Case Based on Evidence Seized From Laptop -Prosecutors told the U.S. Court of Appeals for the D.C. Circuit that they would not pursue the criminal case or challenge a U.S. District judge’s May ruling that the evidence, seized from a laptop without a warrant at the Los Angeles airport, could not be used.

5. DHS Announces Security Enhancements to Visa Waiver Program -DHS, along with the Department of State and some other federal agencies, will introduce a number of additional or revised security criteria for all VWP participants.

6. Canada Introduces New Entry Requirement for Some Visa-Exempt Foreign Nationals Traveling by Air -Canada has introduced a new entry requirement, known as Electronic Travel Authorization (eTA), for certain visa-exempt foreign nationals traveling to Canada by air, not including U.S. citizens.

7. ABIL Global: Canada -Canada has introduced a new immigrant investor venture capital pilot program.

8. New Publications and Items of Interest -New Publications and Items of Interest

9. ABIL Member/Firm News -ABIL Member/Firm News

10. Government Agency Links -Government Agency Links

Details:

1. New L-1B Memo Addresses Some Issues, But Concerns Remain

A new L-1B policy memorandum issued by U.S. Citizenship and Immigration Services (USCIS) provides guidance on the adjudication of the L-1B classification, which permits multinational companies to transfer employees who possess “specialized knowledge” from their foreign operations to their operations in the United States. It provides consolidated and authoritative guidance on the L-1B program, superseding and rescinding certain prior L-1B memoranda. Some practitioners expressed concerns that the memo still gives adjudicators broad discretion to issue requests for evidence (RFEs) and denials.

The memo notes the following “non-exhaustive” list of factors USCIS may consider when determining whether a beneficiary’s knowledge is specialized:

  • The beneficiary possesses knowledge of foreign operating conditions that is of significant value to the petitioning organization’s U.S. operations.
  • 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 the petitioning organization.
  • 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 petitioning organization.
  • The beneficiary possesses knowledge that is particularly beneficial to the petitioning organization’s competitiveness in the marketplace.

The memo notes that specialized knowledge generally cannot be commonly held, lacking in complexity, or easily imparted to other individuals. Specialized knowledge need not be proprietary or unique to the petitioning organization. The memo also notes that the L-1B classification does not involve a test of the U.S. labor market, and that specialized knowledge workers need not occupy managerial or similar positions or command higher compensation than their peers.

MEMO, issued August 17, 2015

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2. USCIS Discontinues Legacy E-Filing System

U.S. Citizenship and Immigration Services (USCIS) recently announced that it is discontinuing its legacy “e-Filing” system to maintain data security standards and focus resources on a replacement Electronic Immigration System.

The legacy e-Filing system offered online filing for several USCIS forms. After the legacy system is decommissioned and before the new system is fully operational, applicants must use paper forms when filing all categories of:

  • Form I-131, Application for Travel Document
  • Form I-140, Immigrant Petition for Alien Worker
  • Form I-765, Application for Employment Authorization
  • Form I-821, Application for Temporary Protected Status
  • Form I-907, Request for Premium Processing Service

The last day to start new forms in the e-Filing system was August 30, 2015. Applicants must complete and submit all forms by September 20, 2015, or file a paper form. Those who have a pending case submitted through the legacy e-Filing system do not need to take any action. USCIS said it will adjudicate those cases to completion.

USCIS noted that the forms being removed from the legacy e-Filing system will not be available immediately in the new Electronic Immigration System, but the agency plans to add them in the future. USCIS did not indicate when the new system would be fully implemented.

USCIS ANNOUNCEMENT

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3. DHS Extends TPS Designation for Haiti by 18 Months

The Department of Homeland Security has extended Haiti’s temporary protected status (TPS) designation for an additional 18 months, through July 22, 2017.

Current TPS Haiti beneficiaries seeking to extend their TPS status must re-register during a 60-day period that began on August 25, 2015, and runs through October 26, 2015. U.S. Citizenship and Immigration Services (USCIS) is encouraging beneficiaries to re-register as soon as possible.

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible TPS Haiti beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of July 22, 2017. USCIS said it recognizes that some re-registrants may not receive their new EADs until after their current EADs expire. Therefore, USCIS is automatically extending current TPS Haiti EADs bearing a January 22, 2016, expiration date for an additional six months. These existing EADs are now valid through July 22, 2016.

Haiti was initially designated for TPS on January 21, 2010, after a major earthquake devastated the country. Following consultations with other federal agencies, DHS determined that current conditions in Haiti support extending the designation period for current TPS beneficiaries.

To re-register, current TPS beneficiaries must submit:

  • Form I-821, Application for Temporary Protected Status (re-registrants do not need to pay the I-821 application fee);
  • The biometric services fee (or a fee waiver request) if they are 14 years old or older;
  • Form I-765, Application for Employment Authorization, regardless of whether they want an EAD; and
  • The Form I-765 application fee, or a fee waiver request, but only if they want an EAD. If the re-registrant does not want an EAD, no application fee is required.

Applicants may ask USCIS to waive the I-765 application fee and/or biometrics fee based on an inability to pay. To do so, applicants must file Form I-912, Request for Fee Waiver, or submit a written request. Fee waiver requests must be accompanied by supporting documentation.

FEDERAL REGISTER NOTICE announcing the extension

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4. Federal Prosecutors Drop Criminal Case Based on Evidence Seized From Laptop

Federal prosecutors have dropped a criminal case against Jae Shik Kim, a Korean businessman, who was charged with violating economic sanctions based on evidence seized from his laptop. On August 11, 2015, prosecutors told the U.S. Court of Appeals for the D.C. Circuit that they would not pursue the criminal case or challenge an order U.S. District Judge Amy Berman Jackson made in May ruling that the evidence, seized without a warrant at the Los Angeles airport, could not be used.

Judge Jackson had noted, ” Given the vast storage capacity of even the most basic laptops, and the capacity of computers to retain metadata and even deleted material, one cannot treat an electronic storage device like a handbag simply because you can put things in it and then carry it onto a plane.” Jeff Ifrah, one of Kim’s lawyers, speculated that the federal government didn’t appeal the decision because it “could have resulted in some bad precedent about the type of searches that are going on every day at airports. I think they don’t want to be responsible for having a circuit court of appeals rule that those searches are illegal.” He called the case “clearly a violation of the Fourth Amendment.”

JUDGE JACKSON’S MAY 2015 ORDER

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5. DHS Announces Security Enhancements to Visa Waiver Program

On August 6, 2015, Department of Homeland Security (DHS) Secretary Jeh C. Johnson announced the agency’s intent to implement security enhancements to the Visa Waiver Program (VWP). He said that DHS, along with the Department of State and other federal agencies, will begin introducing “a number of additional or revised security criteria” for all VWP participants, to apply to both new and current members of the program. The VWP currently has 38 participating countries.

Most significant among the new security requirements, he said, would be required use of e-passports for all VWP travelers coming to the United States; required use of the INTERPOL Lost and Stolen Passport Database to screen travelers crossing a VWP country’s borders; and permission for the expanded use of U.S. federal air marshals on international flights from VWP countries to the United States.

U.S. Customs and Border Protection (CBP) has noted that DHS is concerned about the risks posed by the situation in Syria and Iraq, where increasing instability has attracted thousands of foreign fighters, including many from VWP countries. Such individuals could travel to the United States for operational purposes on their own or at the behest of violent extremist groups in Syria, CBP warned. Among other things, DHS has expanded the amount of information collected by its Electronic System for Travel Authorization (ESTA).

SECRETARY JOHNSON’S STATEMENT

CBP ANNOUNCEMENT

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6. Canada Introduces New Entry Requirement for Some Visa-Exempt Foreign Nationals Traveling by Air

As of August 1, 2015, Canada has introduced a new entry requirement, known as Electronic Travel Authorization (eTA), for certain visa-exempt foreign nationals traveling to Canada by air. Exceptions include U.S. citizens and travelers with valid visas. Entry requirements for other methods of travel (e.g., land, sea) have not changed.

Eligible travelers can apply online for an eTA. On March 15, 2016, this entry requirement will become mandatory and such travelers will need an eTA before they can board a flight to Canada.

FOR MORE INFORMATION OR TO APPLYFOR AN ETA

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7. ABIL Global: Canada

Canada introduces new immigrant investor venture capital pilot program.

In January 2015, Citizenship and Immigration Canada (CIC) introduced a new Immigrant Investor Venture Capital (IIVC) Pilot Program to attract experienced business immigrants who can actively invest in the Canadian economy and thereby stimulate innovation, economic growth, and job creation.

Applicants must have a minimum personal net worth of CDN $10 million and make an at-risk investment of CDN $2 million in the IIVC Fund, which will be held for 15 years. Also, the applicant must: prove his or her proficiency in English or French in all four language abilities (speaking, reading, listening, and writing).

In addition, the applicant ordinarily must have a completed Canadian post-secondary degree, diploma, or certificate of at least one year or a foreign equivalent. However, if the applicant is able to demonstrate that he or she has a personal net worth of $50 million or more acquired through lawful, private sector business or investment activities, the applicant may request an exemption from the education requirement.

Since its inception, there have been a number of closures and re-openings under the IIVC program. The most recent re-opening of the program took place in May 2015.

CIC will accept applications until December 30, 2015, and will process the first 60 complete applications. CIC will also accept up to 60 additional applications that will be placed on a waiting list. The program may close earlier if 60 immigrant investors are approved for permanent residence, or once 60 applications are in process and 60 applications are on the waiting list.

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8. New Publications and Items of Interest

Webinars on E-Verify. Upcoming webinars on various aspects of E-Verify will be held in September. Customized sessions on the topic, date, and time of your choice are available by e-mailing E-VerifyOutreach@uscis.dhs.gov. INFORMATION ABOUT THE WEBINAR

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 a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. 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

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9. ABIL Member/Firm News

Cyrus Mehta has authored a new blog entry. “Why Birthright Citizenship Is Most Wonderful For America!”

Mr. Mehta and Angelo Paparelli were quoted in Law360 in an article on the recent USCIS L-1B policy guidance memo. Mr. Paparelli noted, “An adjudicator with a mind to say no will not be stopped by this new memo.” Mr. Mehta noted that a list of evidence a company can submit to show that an employee’s knowledge constitutes “specialized knowledge” “smacks of what we will see in an RFE.” The article, published on August 19, 2015.

Mr. Paparelli and his partner at Seyfarth Shaw LLP, Greg White, were quoted in Law 360 in “New FINRA Rule May Spark Pushback From EB-5 Agents Abroad.” Mr. Paparelli said he didn’t think the rule would have a big immediate impact on the EB-5 marketplace: “The rule only applies to registered broker-dealers, and unfortunately, they have not made a substantial inroad into EB-5 transactions.” Commenting on the fact that the new FINRA rule stipulates that a foreign agent who does more than make an introduction must be a registered representative, Mr. White noted that “[o]nce a finder does more than make an introduction and receives so-called transaction-based compensation—i.e., a percentage of the deal—there’s an issue as to whether they have a problem with the [Securities and Exchange Commission].”

Stephen Yale-Loehr was quoted by Le Temps in French about birthright citizenship. He noted, ” Les Etats-Unis appartiennent à une trentaine de pays qui appliquent dans le monde le droit du sol inconditionnel.” The article, published on August 29, 2015.

Mr. Yale-Loehr was quoted by Univision in Spanish in an article about Dan-el Padilla Peralta, an undocumented person from the Dominican Republic that he represented. The article noted, “Stephen Yale-Loehr intentó regularizar su estatus migratorio en cada uno de sus años académicos hasta que finalmente logró para ese visado de trabajo.”

Mr. Yale-Loehr was quoted by the Miami Herald in an article about a ruling by a federal judge for the Obama administration to release hundreds of migrant women and children in detention centers awaiting hearings. Calling the decision “historic,” Mr. Yale Loehr noted, “If it stands, it will force major changes to the government’s family detention program.”

Mr. Yale-Loehr was quoted by CBS News in an article about birthright citizenship and a related policy paper issued by 2016 Republican presidential candidate Donald Trump, who called it “the biggest magnet for illegal immigration.” Mr. Yale-Loehr said ending birthright citizenship would require amending the Constitution. “It would require a vote of two-thirds of both houses of Congress and then ratification by three-fourths of the state legislatures so politically, I think that’s almost impossible. Some people believe that [Congress] could simply pass a statute to end birthright citizenship without having to amend the Constitution, but I think that most legal scholars believe that a constitutional amendment is required.”

Mr. Yale-Loehr was quoted by Bloomberg BNA’s Daily Labor Report in “Concern Over Proposed EB-5 Changes May Become Much Ado About Nothing.” “The chances are pretty slim” that the EB-5 program won’t be reauthorized, he said, noting that the regional center program is very popular, especially among members of Congress who note that it creates U.S. jobs at no expense to taxpayers. The article is reproduced with permission at Miller Mayer.

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10. 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

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