1. USCIS Adds 16 Countries to H-2A/H-2B Visa Programs -The countries being added in January are Andorra, Belgium, Brunei, Colombia, Finland, France, Germany, Greece, Lichtenstein, Luxembourg, Malta, Monaco, San Marino, Singapore, Taiwan, and Timor-Leste. Moldova will no longer be designated as an eligible country to participate in the H-2B program because Moldova is not meeting regulatory standards. Nationals of Moldova may still participate in the H-2A program because Moldova continues to meet those standards.
2. USCIS Updates Application for Employment Authorization -Several older versions are also still being accepted.
3. USCIS Releases Controversial Draft Policy Memo on Job Portability -The memo provides additional guidance on determining whether one job is in “the same or a similar occupational classification” as another job.
4. DHS Provides Post-Earthquake Relief to Nepali F-1 Students -Eligible Nepali citizens who are F-1 students may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 student status.
5. Wisconsin Joins E-Verify RIDE Program -Wisconsin joins Florida, Idaho, Iowa, Mississippi, Nebraska, and North Dakota in the program.
6. Credit Cards Now Accepted for Naturalization Fees -USCIS explained that this change is one of the recommendations made by the White House Task Force on New Americans.
7. USCIS Updates Paper Version of G-28 Notice of Appearance -USCIS recently updated the paper version of Form G-28, Notice of Entry of Appearance as Attorney or Representative.
8. ABIL Global: United Kingdom -Several developments have been announced.
9. New Publications and Items of Interest -New Publications and Items of Interest
10. ABIL Member/Firm News -ABIL Member/Firm News
11. Government Agency Links -Government Agency Links
Effective January 18, 2016, USCIS and the Department of Homeland Security (DHS), in consultation with the Department of State, are adding Andorra, Belgium, Brunei, Colombia, Finland, France, Germany, Greece, Lichtenstein, Luxembourg, Malta, Monaco, San Marino, Singapore, Taiwan, and Timor-Leste to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for 2016.
DHS noted that it reserves the right to add countries to the eligible list at any time, and to remove any country whenever the agency determines that a country fails to meet the requirements for continued designation.
Secretary of Homeland Security Johnson and Secretary of State Kerry have agreed that Moldova will no longer be designated as an eligible country to participate in the H-2B program because Moldova is not meeting regulatory standards. Nationals of Moldova may still participate in the H-2A program because Moldova continues to meet those standards.
USCIS explained that the H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs, respectively. Typically, USCIS only approves H-2A and H-2B petitions for nationals of countries the Secretary of Homeland Security has designated as eligible to participate in the programs. USCIS, however, may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.
The notice does not affect the status of beneficiaries who currently are in the United States in H-2A or H-2B status unless they apply to change or extend their status. Each country’s designation is valid for one year from January 18, 2016.
FEDERAL REGISTER NOTICE announcing the additions
U.S. Citizenship and Immigration Services (USCIS) has published an update to Form I-765, Application for Employment Authorization. The new edition is dated 11/04/15. Previous editions dated 02/13/15, 05/27/08, or later are also being accepted.
U.S. Citizenship and Immigration Services (USCIS) recently released a draft policy memorandum, “Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability.” The memo was posted on November 20, 2015, and the comment period ends January 4, 2016.
The memo instructs Immigration Services Officers (ISOs) on how they may use the Department of Labor’s (DOL’s) Standard Occupational Classification (SOC) codes and other evidence to determine whether a new job is in the same or a similar occupational classification as the original job offer in an Immigrant Petition for Alien Worker (Form I-140 petition) submitted to USCIS. USCIS said the purpose of the memo is “to promote consistency and efficiency in section 204(j) portability adjudications in accordance with the policy objectives described herein. Such adjudications require individualized assessments that consider the totality of the circumstances and are based on a preponderance of the evidence presented.”
The memo notes that despite the statutory flexibility provided in INA § 204(j), “stakeholders have raised concerns that the job portability provision is underutilized due to significant uncertainty concerning USCIS determinations in this area.” The memo “is intended to address that uncertainty by providing additional guidance for determining whether two jobs are in the same or similar occupational classification(s).”
In making these determinations, the memo explains, USCIS may refer to DOL’s labor market expertise as reflected in its SOC system, which is used to organize occupational data and classify workers into distinct occupational categories. Occupations are generally categorized based on the type of work performed and, in some cases, on the skills, education, and training required to perform the job. The memo notes that the SOC organizes all occupations into 23 “major groups,” which are then broken down in descending order into: 97 “minor groups,” 461 “broad occupations,” and 840 “detailed occupations.” All workers are classified into one of these 840 detailed occupations. Detailed occupations with similar job duties and, in some cases, skills, education, and/or training are generally grouped together in the same broad occupation. The SOC system is organized using numeric codes that generally consist of six digits. Each digit or group of digits represents the level of similarity of positions. No occupation is assigned to more than one category at the lowest level of the classification (sixth digit).
Some attorneys complain that USCIS misses the mark with this memo and ignores the legislative history, which was, as the title of the provisions suggest, for “job flexibility,” so that workers are not treated as indentured servants and may improve their prospects by switching jobs and employers. These commenters note that the agency interprets “similar” to mean having a “marked resemblance,” rather than a mere “resemblance,” although it cites two dictionaries, only one of which says the resemblance must be “marked.” They also expressed concerns that USCIS mechanistically applies the SOC codes, which were never intended to be used for this purpose, and instead were a bureaucratic fix for DOL to stop publishing the 40,000+ job listing in the Dictionary of Occupational Titles.
Effective November 9, 2015, the Department of Homeland Security (DHS) suspended certain regulatory requirements for F-1 nonimmigrant students whose country of citizenship is the Federal Democratic Republic of Nepal and who are experiencing severe economic hardship as a direct result of the earthquake there on April 25, 2015.
DHS said this action is intended to provide relief to Nepali citizens who are F-1 students so they may request employment authorization, work an increased number of hours while school is in session, and reduce their course loads while continuing to maintain their F-1 student status. DHS will deem an F-1 student who receives employment authorization by means of this notice to be engaged in a “full course of study’ for the duration of the employment authorization, if the student satisfies the minimum course load requirement described in the notice.
U.S. Citizenship and Immigration Services (USCIS) recently announced that Wisconsin has become the latest state to join the “Records and Information from DMVs for E-Verify” (RIDE) program. In conjunction with the American Association of Motor Vehicle Administrators, RIDE links the E-Verify system with participating state driver’s licensing agencies. RIDE allows E-Verify to validate the authenticity of driver’s licenses and state identification cards presented by employees as Form I-9 identity documents.
Wisconsin joins Florida, Idaho, Iowa, Mississippi, Nebraska, and North Dakota in the program.
U.S. Citizenship and Immigration Services (USCIS) is now accepting credit cards to pay the processing fee for Form N-400, Application for Naturalization. Most applicants pay $680, which includes the $595 naturalization application fee and a biometrics fee of $85.
To pay with a credit card, an applicant must file Form G-1450, Authorization for Credit Card Transaction. USCIS explained that this change “is one of the recommendations made by the White House Task Force on New Americans.” Acceptable cards include Visa, MasterCard, American Express, and Discover, along with gift cards with Visa, MasterCard, American Express, or Discover logos. The entire fee must be paid using a single card. USCIS will reject the application if the card is declined.
U.S. Citizenship and Immigration Services (USCIS) recently updated the paper version of Form G-28, Notice of Entry of Appearance as Attorney or Representative. The update does not address filings made in the Electronic Immigration System.
Several developments have been announced.
Home Office Publishes Latest Changes to Immigration Rules—How Will These Affect Tier 2 Sponsors?
On October 29, 2015, the Home Office published its latest Statement of Changes to the Immigration Rules. The most relevant for points-based system Sponsors are those relating to Tier 2. These changes, which took effect November 19, 2015, are summarized below. Also included below is an update on other immigration-related changes, including the United States’ extending its passport fast-track scheme to United Kingdom (UK) citizens and further roll-out of criminal record checks.
Tier 2 Changes
- A number of additional jobs have been added to the Shortage Occupation List (SOL):
- All nursing posts. This is a temporary measure, pending the outcome of a further consultation by the Migration Advisory Committee (MAC). The MAC will then report on the need for nurses to remain on the SOL. This is welcome news for the profession because it means that starting in April 2016, nurses will be exempt from the Resident Labour Market Test, will receive higher priority in the allocation of places for the Tier 2 limit, and will not need to meet the £35,000 qualifying salary threshold for Tier 2 (General) applicants to secure permanent residence in the UK.
- Four roles in the digital technology sector (product manager, data scientist, senior developer, and cyber security specialist). These roles are only available to Sponsors who can satisfy the new “qualifying company” criteria. A qualifying company is a licensed sponsor that employs between 20 and 250 employees, is not more than 25% owned by a company with one or more establishments in the UK having more than 250 employees, and has not been established in the UK for the purpose of supplying services exclusively to a single company or group in the UK. Each qualifying company will be able to sponsor up to 10 Tier 2 (General) migrants holding these positions. The roles also require migrants to have five or more years of relevant experience and demonstrable experience of having led a team.
- Entry clearance issuance dates will be better aligned with migrants’ start dates of employment in the UK. In effect, they can be post-dated in line with the applicant’s stated date of travel to the UK, provided this is no later than 14 days after the start date of employment given by the migrant’s Sponsor. This change will give more flexibility to migrants and hopefully will reduce the incidence of migrants having to reapply for entry clearance if they have been unable to travel to the UK within the short window provided by the 30-day travel visa.
- Maintenance rules for family members are being amended so that where the Tier 2 migrant is exempt from having to show maintenance with extension applications, his or her dependents will also be exempt, even if applying at a later date.
- Tier 2 (and Tier 5) migrants are limited to four weeks of unpaid absence from work per calendar year. This is being changed from the current period of 30 days.
- Tier 2 provisions relating to maternity, paternity, and adoption leave will now also cover shared parental leave. This will be relevant where there is a salary reduction below the appropriate rate for the job, as stated in the government’s Standard Occupation Codes, for the duration of the leave only.
- Indefinite leave to remain (ILR) additional requirements for Tier 2 (General) migrants include the requirement for Sponsors to certify in writing that the migrant is still required for the employment in question for the foreseeable future and that the salary payable will continue for the foreseeable future. This will affect those migrants who have been issued a redundancy notice, for example, or where the migrant has given notice of termination of employment. Sponsors need to be aware of these new requirements when an application for ILR is submitted and a decision has been made regarding the end date of a migrant’s employment.
United States Extends Passport Fast-Track Scheme to UK Citizens
This development will be extremely useful for British nationals who travel frequently to the United States for business. Similar to the UK Registered Traveller Scheme, frequent travelers to the United States can apply to join “Global Entry” starting on December 3, 2015. Travelers first must apply to the Home Office and pay a £42 processing fee. If the applicant passes UK vetting, he or she will receive an access code to use when applying for the Global Entry program, which costs £65 and is valid for five years. This new program is intended to speed up passage through U.S. immigration control. According to the United States, the new process cuts down passport control waiting times by about 70%.
Further Roll-Out of Criminal Record Checks
The Home Office is reviewing the further roll-out of the requirement for migrants to obtain police clearance certificates. Because this may be rolled out to Tier 2 migrants early in 2016, Sponsors should factor it in when planning for migrants to transfer to the UK early next year.
OSC workers’ rights webinars. The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) is offering webinars on workers’ rights. The webinars include answers to questions about hiring, firing, and recruitment discrimination based on citizenship, immigration status, or national origin; what to do if you believe an employer is discriminating during the E-Verify or Form I-9 employment authorization verification processes; and government resources. The webinars include:
- December 1, 2015, 3 pm ET: OSC Worker/Advocate
- December 3, 2015, 11 am ET: OSC Employer/HR Representative
- December 15, 2015, 11 am ET: OSC Worker/Advocate (Spanish)
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
The following ABIL members and firms were named to Chambers Global:
Mark Ivener and Ivener and Fullmer LLP
Robert Loughran and Foster, LLP
Maggio & Kattar, PC
Pearl Law Group
Avi Gomberg and Gomberg Dalfen
The following ABIL members were named to Who’s Who 2016:
Klasko Immigration Law Partners, LLP was recognized as a National Tier 1 firm in Immigration Law in the 2016 edition of Best Law Firms by U.S. News Media Group and Best Lawyers®.
Mr. Kuck was quoted in “Legal Experts Say Governors Cannot Block Syrian Refugees,” published by Fox5 in Georgia on November 17, 2015. He noted that under the U.S. Constitution, governors do not have the right to keep Syrian refugees out of their states.
Dustin Baxter, of Mr. Kuck‘s office, has authored a new blog entry. “7 Things That Scare Me More Than Syrian Refugees”
Ms. Mehlman spoke on a panel, “Updates on Worksite Enforcement,” at the American Immigration Lawyers Association’s Texas Chapter Fall Conference in Punta Cana, Dominican Republic, on November 20, 2015.
Mr. Mehta has authored two new blog entries. “Sink or Swim Together: States Have No Legal Basis To Refuse Syrian Refugees” “Impact of Texas v. USA on Other Executive Actions Involving Employment Authorization”
Mr. Mehta and Mr. Paparelli were quoted in “Job Portability Memo’s Focus On DOL Codes Stirs Worries,” published in Law360 on November 24, 2015. Mr. Mehta said, “What I find a little worrying is that there’s too much emphasis on these SOC codes, which would then force an examiner to just look at SOC codes.” Mr. Paparelli noted that the SOC codes are meant largely to help determine the prevailing wages. He said the memo embraces a “formulaic application” of the codes: “This is applying a resource beyond its intended purpose. And acting as if it is the word inscribed on tablets from Mount Sinai, as Moses delivers them.”
Mr. Wolfsdorf has authored a new blog entry. “Ten Facts About EB-5 Immigrant Investor Fiscal Year 2015 Numbers”
Mr. Yale-Loehr will speak at a symposium, “Twenty-Five Years Later: Reflecting on the Immigration Act of 1990,” to be held at the Migration Policy Institute in Washington, DC, on Tuesday, December 8, 2015, from 10 am to 12 noon ET. For more information or to register, call 202-266-1929 or email@example.com.
Mr. Yale-Loehr was quoted in the Wall Street Journal on November 17, 2015, in “White House Says Syrian Refugees Face Rigorous Screening.” He noted, “States cannot decide to accept refugees from country X but not from country Y.”
Mr. Yale-Loehr was quoted in marketplace.com (an NPR show) on November 18, 2015, about the Syrian refugee crisis.
Mr. Yale-Loehr was quoted in medium.com in an article by and about his client, Dan-el Padilla Peralta.
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: