News from the Alliance of Business Immigration Lawyers Vol. 11, No. 12B • December 15, 2015
1. House Votes for Stricter Visa Waiver Program Following Terror Concerns; Obama Announces Changes -Following recent terror attacks in Paris, France, and San Bernardino, California, the U.S. House of Representatives voted to tighten restrictions on travelers under the VWP. Also, President Barack Obama announced new security measures for the VWP, including gathering more information from travelers about visits to Syria and Iraq.
2. Obama Orders Review of K-1 Fiancé(e) Visa Program Following California Attack -President Barack Obama has ordered a review of the K-1 fiancé(e) visa program in response to terrorism concerns following the mass shooting in San Bernardino, California.
3. USCIS Reminds EB-5 Regional Centers To File FY 2015 I-924A By Dec. 29 -Regional centers must submit the I-924A every year to demonstrate continued eligibility for the regional center designation.
4. BALCA Holds That Institutions of Higher Education Need Not Include Other Types of Entities in Wage Surveys -In Matter of University of Michigan, the BALCA ruled in favor of an employer that argued its wage survey of institutions of higher education was sufficient in determining the prevailing wage for a Senior Associate Regulatory Analyst.
5. Users Report Problems With New 9 FAM-e -Among other things, users report that the crosswalked citations for the new 9 FAM-e in some cases do not correspond appropriately to sections in the legacy 9 FAM.
6. Deadline for Nepal TPS Registration is December 21 -The TPS designation for Nepal runs from June 24, 2015, through December 24, 2016.
7. Two Visa Categories Have Expired -The non-minister special immigrant program and the immigrant investor pilot program have expired. It is uncertain when Congress may take action to extend these programs.
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
1. House Votes for Stricter Visa Waiver Program Following Terror Concerns; Obama Announces Changes
Following recent terror attacks in Paris, France, and San Bernardino, California, the U.S. House of Representatives voted on December 8, 2015, to tighten restrictions on travelers under the Visa Waiver Program (VWP). The VWP allows people from 38 countries to enter the United States for up to 90 days without obtaining a visa. The bill passed 407 to 19. The bill would require visitors to obtain a visa if they traveled to Syria, Iraq, Iran, or Sudan during the past five years, and would increase information-sharing among the United States and other participating VWP countries, among other things. The Senate has not yet voted on the legislation.
Also, President Barack Obama announced new security measures for the VWP, including gathering more information from travelers about visits to Syria and Iraq. The administration is also considering pilot programs for collecting biometric information from VWP travelers, and is urging Congress to allow an increase in fines against air carriers that do not properly verify passport data and to require all travelers to use passports that include security chips. These measures come amid pressure separately from many U.S. governors against allowing in an additional 10,000 Syrian refugees.
The U.S. Travel Association, which supports the House-passed measure, noted that the VWP facilitates international travel to the United States, generating billions of dollars in economic output and supporting U.S. jobs. International travelers stay longer and spend more while here, the association noted, with an average of 18 nights and nearly $4,400 per person per trip. For every 35 overseas travelers who decide to visit the United States, an additional U.S. job is created, the association reported. In 2014, more than 20.4 million travelers arrived through the VWP (59% of overseas visitors), generating $190 billion in economic output and supporting nearly one million jobs. “This is why, largely as a result of the VWP, travel is our nation’s number one services export, generating a trade surplus of $74 billion in 2014,” the association said.
See https://vwp.ustravel.org/ for more information, including a chart showing differences between nonimmigrant visas and the VWP in eligibility requirements, the application process, pre-arrival procedures, and port of entry requirements.
2. Obama Orders Review of K-1 Fiancé(e) Visa Program Following California Attack
President Barack Obama has ordered a review of the K-1 fiancé(e) visa program in response to terrorism concerns following the mass shooting in San Bernardino, California, that killed 14 people and injured many others on December 2, 2015. A husband-and-wife team launched the attack following the wife’s admission to the United States several years ago as a K-1 fiancée. President Obama said he ordered the Departments of State and Homeland Security to review the program.
Recent reports have noted, among other things, that security checks on the wife, Tashfeen Malik, for admission to the United States on a K-1 visa failed to uncover her support on social media of violent jihad and her statements that she wanted to participate in it. Social media is not routinely reviewed as part of Homeland Security checks. How such reviews of social media postings could occur, and whether they are appropriate, is reportedly a topic of debate within the U.S. government.
Approximately 35,925 people entered the United States in fiscal year 2014 on fiancé(e) visas.
STATISTICS ON FY 2014 NONIMMIRANT VISAS ISSUED BY COUNTY AND TYPE OF VISA
3. USCIS Reminds EB-5 Regional Centers To File FY 2015 I-924A By Dec. 29
USCIS Reminds EB-5 Regional Centers To File FY 2015 I-924A By Dec. 29
U.S. Citizenship and Immigration Services (USCIS) recently reminded all approved EB-5 regional centers with a designation letter dated on or before September 30, 2015, that they must file Form I-924A, Supplement to Form I-924, for fiscal year 2015 by December 29, 2015.
Regional centers must submit the I-924A every year to demonstrate continued eligibility for the regional center designation. Regional centers may be terminated for failure to file this form or provide USCIS with required information, or for failure to promote economic growth. A regional center that has been terminated from the EB-5 program may not solicit, generate, or promote investors or investments, or otherwise participate as a designated regional center in connection with the Immigrant Investor Program.
There is no filing fee for the I-924A.
4. BALCA Holds That Institutions of Higher Education Need Not Include Other Types of Entities in Wage Surveys
In Matter of University of Michigan, 2015-PWD-00006 (Nov. 18, 2015), the Department of Labor’s Board of Alien Labor Certification Appeals (BALCA) ruled in favor of an employer, the University of Michigan, that argued its wage survey of institutions of higher education was sufficient in determining the prevailing wage for a Senior Associate Regulatory Analyst. The Center Director (CD) had required that other types of entities be included in the employer’s wage survey, but the employer noted, among other things, that it had no obligation to provide such a survey.
The BALCA observed that the regulation at 20 CFR § 656.40(e) states that in computing the prevailing wage for an employee of an institution of higher education, or an affiliated or related nonprofit entity, a nonprofit research organization, or a governmental research organization, the prevailing wage level takes into account the wage levels of employees only at such institutions and organizations in the area of intended employment. This regulation was based on § 415 of the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA).
Under the regulations, the BALCA noted, an ACWIA wage for an institution of higher education may sample only other institutions of higher education. “The CD’s insistence that the Employer provide a survey that sampled each type of ACWIA entity is inconsistent with the Department’s interpretation of the regulation and therefore constitutes an abuse of discretion,” the BALCA held. The BALCA overruled the CD and remanded the case to the CD for further processing consistent with the BALCA’s order.
5. Users Report Problems With New 9 FAM-e
Some users are reporting problems with the new 9 FAM-e, which replaced the legacy Volume 9 of the Foreign Affairs Manual (9 FAM) on November 18, 2015, and is the “authoritative source for visa guidance,” according to the Department of State’s (DOS) December 2015 Visa Bulletin.
DOS developed crosswalk tables correlating old citations with new, so that users could match new 9 FAM-e sections with former locations in the legacy 9 FAM. Users report, however, that the citations in some cases do not correspond appropriately. Also, some of the 9 FAM-e sections listed in the crosswalk do not yet show up in the online 9 FAM-e and are listed as “unavailable.” The legacy 9 FAM is no longer available online. There are also concerns about the cross-references disappearing over time. Users are raising these concerns with DOS.
The announcement is in section F of the December 2015 Visa Bulletin
6. Deadline for Nepal TPS Registration is December 21
U.S. Citizenship and Immigration Services (USCIS) issued a reminder that the deadline for eligible nationals of Nepal (and people without nationality who last habitually resided in Nepal) to register for temporary protected status (TPS) is Monday, December 21, 2015. This deadline marks the end of the 180-day initial registration period. The TPS designation for Nepal runs from June 24, 2015, through December 24, 2016.
To be eligible for TPS, Nepali applicants must demonstrate that they meet all eligibility criteria, including that they have been both “continuously physically present” and “continuously residing” in the United States since June 24, 2015. They must also undergo security checks. Individuals with certain criminal records or who pose a threat to national security are not eligible for TPS.
To register for TPS, applicants must submit:
- Form I-821, Application for Temporary Protected Status;
- Form I-821 application fee (or a fee-waiver request);
- Biometric services fee (or a fee-waiver request) if 14 years of age or older;
- Form I-765, Application for Employment Authorization, regardless of whether an Employment Authorization Document (EAD) is desired; and
- The Form I-765 application fee (or a fee-waiver request), but only if the applicant wants an EAD. If he or she does not want an EAD, no application fee is required. There is no I-765 fee for initial applicants under the age of 14 or over 65; these applicants may receive their initial EAD cards for free.
Those who cannot pay the fee may request a fee waiver on Form I-912, and submit supporting documentation.
For more information about the designation of Nepal for TPS—including guidance on eligibility, the application process, and where to file.
7. Two Visa Categories Have Expired
The Department of State’s Visa Bulletin for the month of January 2016 notes that the non-minister special immigrant program (SR visa, employment fourth preference) expired on December 11, 2015. No SR visas may be issued overseas or related final action taken on adjustment of status cases. Visas issued before this date are only issued with a validity date of December 10, 2015, and all individuals seeking admission as non-minister special immigrants must have been admitted into the U.S. by midnight December 10, 2015.
The immigrant investor pilot program (employment fifth preference categories I5 and R5) was extended through December 11, 2015. I5 and R5 visas were issued until the close of business on December 11, 2015, for the full validity period. No I5 or R5 visas may now be issued overseas or related final action taken on adjustment of status cases.
The cut-off dates for the categories mentioned above are “Unavailable” for January. Congress is considering an extension of the SR, I5, and R5 visa categories, but the Department of State notes that it is unclear when such legislative action may occur. If there is legislative action extending any of these categories for fiscal year 2016, those cut-off dates would immediately become “Current” for January for all countries except China-mainland born I5 and R5 categories, which would be subject to a January 8, 2014, cut-off date.
VISA BULLETIN FOR JANUARY 2016
8. New Publications and Items of Interest
New Smithsonian digital exhibit on H-1B immigration stories. The Smithsonian Asian Pacific American Center has launched a new digital art exhibition to celebrate the 25th anniversary of the H-1B visa. A spin-off from the Smithsonian’s “Beyond Bollywood” exhibition, “H-1B” consists of artwork from 17 South Asian American and Asian-American artists that explore America’s immigration story using the H-1B employment visa as inspiration. A news article about the exhibition. ONLINE EXHIBIT. People can share their H-1B stories using the hashtag #MyH1Bstory.
Revised E-Verify Employee Rights Toolkit. USCIS has revised the E-Verify Employee Rights Toolkit for workers, job-seekers, employers, and workforce organizations.
USCIS launches virtual assistant. USCIS has launched a virtual assistant named Emma that allows users to quickly find information. Emma answers questions in plain English and navigates users to relevant USCIS web pages. She is named after Emma Lazarus, whose words are inscribed at the base of the Statue of Liberty. USCIS noted that although Emma can answer many questions commonly asked, her knowledge base is still growing. As people ask more questions, Emma gets smarter and can better answer future questions. Emma can be accessed on a desktop or laptop computer. Soon, Emma will be expanded to mobile devices. Spanish-language capabilities will be arriving early next year.
To ask Emma a question, go to USCIS and click on “Ask a Question” in the upper right corner.
The 2015 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 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
The following ABIL member firms were named Best Law Firms by U.S. News & World Report:
- Chin & Curtis, LLP (National: Tier 2; Regional: Tier 1, Boston)
- Clark Lau, LLC (National: Tier 2; Regional: Tier 1, Boston)
- Fakhoury Law Group, PC (National: Tier 3; Regional: Tier 3, Troy)
- Foster, LLP (National: Tier 2; Regional: Tier 1, Austin and Houston)
- Fredrikson & Byron, PA (National: Tier 2; Regional: Tier 1, Boston)
- Garfinkel Immigration Law Firm (National: Tier 1; Regional: Tier 1, Charlotte)
- Ivener & Fullmer, LLP (National: Tier 2; Regional: Tier 1, Los Angeles)
- Klasko Immigration and Nationality Law, LLP (National: Tier 2; Regional: Tier 1, Philadelphia)
- Kuck Immigration Partners, LLC (National: Tier 1; Regional: Tier 1, Atlanta)
- Maggio & Kattar, PC (National: Tier 1; Regional: Tier 1, Washington, DC, and Tier 2, San Diego) (named immigration law firm of the year for 2016)
- Masuda, Funai, Eifert & Mitchell, Ltd. (National: Tier 2; Regional: Tier 1, Chicago)
- Mehlman Barnes, LLP (National: Tier 2; Regional: Tier 2, San Diego)
- Cyrus D. Mehta & Associates, PLLC (National: Tier 1; Regional: Tier 1, New York City)
- Pearl Law Group (National: Tier 3; Regional: Tier 3, San Francisco)
- Serotte Reich & Wilson (National: Tier 1; Regional: Tier 1, Buffalo)
- Seyfarth Shaw, LLP (National: Tier 1; Regional: Tier 2, Los Angeles)
- Siskind Susser, PC (National: Tier 1; Regional: Tier 1, Memphis)
- Wolfsdorf Rosenthal, LLP (National: Tier 2; Regional: Tier 1, Los Angeles)
Vincent Lau was named to Who’s Who 2016 of Corporate Immigration Lawyers.
Charles Kuck has authored several new blog entries. “How To Stop Illegal Immigration” “The U Visa for Crime Victims—A Major Backlog Has Arisen”
Robert Loughran was quoted in “State of Texas Pulls Request for Temporary Halt of Syrian Refugees, But Wants Hearing,” published by the Dallas Morning News on December 4, 2015. Mr. Loughran offered his expertise on the merits of the case and reasons why Texas withdrew its request for a temporary restraining order.
Cyrus Mehta has authored several new blog entries. “San Bernardino Attacks Fallout: Will It Get Harder For Americans To Marry Foreign Spouses Overseas?” “Winter Blues: Freezing the Age of the Child Under the December 2015 Visa Bulletin” “Proposed USCIS Guidance on Job Portability: Good, Bad or Ugly?”
Bernard Wolfsdorf will lead a panel, New Developments, at the 2016 Las Vegas EB-5 Conference on January 16, 2016, at the Bellagio Hotel. The conference offers U.S. and Chinese EB-5 stakeholders an opportunity to build business connections and learn about the immigrant investor visa program. Mention Wolfsdorf Rosenthal LLP and get a $150 discount. REGISTRATION
Stephen Yale-Loehr was quoted by the New York Times in “Donald Trump Calls for Barring Muslims From Entering U.S.” on December 7, 2015. He noted that putting Mr. Trump’s policy into practice would require an unlikely act of Congress. Should Congress enact such a law, “[i]t would certainly be challenged as unconstitutional. And I predict the Supreme Court would strike it down,” he said.
Mr. Yale-Loehr spoke on December 8, 2015, at a Migration Policy Institute event in Washington, DC, “Twenty-Five Years Later: Reflecting on the Immigration Act of 1990.” The panel discussion was taped.
Mr. Yale-Loehr was quoted in an Associated Press story about the legality of Republican presidential candidate Donald Trump’s plan to ban all Muslim immigrants from the United States. The story was picked up by more than 100 news outlets around the United States and the world. One example is Yahoo News.
Mr. Yale-Loehr was also interviewed or quoted in the following:
- PBS News Hour (EB-5)
- U.S. News and World Report
- CBS news.com
- PBS News Hour (EB-5)
- Bureau of National Affairs, “Foreign Outsourcing Is Unexpected Immigration Act Outcome” (available by subscription)
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