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

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

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

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

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

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

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

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.

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 [email protected]. 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

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.

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: