News from the Alliance of Business Immigration Lawyers Vol. 12, No. 9B • September 15, 2016
1. State Dept. Announces Potential Visa Availability in the Coming Months -The Department of State’s Visa Bulletin for October 2016 provided an overview of potential visa number availability.
2. State Dept. Announces Expiration of Two Employment-Based Visa Categories -The Department of State’s Visa Bulletin for October 2016 announced the expiration at the end of September of the employment fourth preference “Certain Religious Workers” category and the I-5 and R-5 employment fifth preference categories.
3. Sens. Grassley, Leahy Oppose Reauthorization of Unaltered EB-5 Regional Center Program; Rep. Goodlatte Introduces EB-5 Reform Bill -A lot has been happening the last few days in the EB-5 world. Sens. Grassley and Leahy wrote a letter to Senate leadership opposing a straight reauthorization of the EB-5 regional center program without any changes. Also, Rep. Goodlatte introduced an EB-5 reform bill. The 123-page bill would make significant changes to the EB-5 program.
4. ICE Extends and Adds to Employment Authorization for Certain Syrian F-1 Nonimmigrant Students -The new notice will remain in effect until March 31, 2018.
5. DHS Announces Annual Limit for CNMI Transitional Workers -The numerical limitation for the CNMI-Only Transitional Worker (CW-1) nonimmigrant classification for FY 2017 is set at 12,998.
6. DHS Alerts Employers Re Documentation Options in Wake of Flooding -Individuals from affected areas who need to replace lost or damaged documents can consult FEMA fact sheets.
7. DHS Updates Lists of Officials Authorized to Perform Various Immigration Functions -DHS said the lists are outdated and do not reflect the current DHS organizational structure, so the agency updated the lists with the specific officials who are authorized to perform various functions.
8. United States, Mexico Sign MOU To Combat Employment Discrimination -The United States and Mexico agree to collaborate to provide Mexican nationals with information, guidance, and access to education and training resources to help them understand their rights.
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
1. State Dept. Announces Potential Visa Availability in the Coming Months
The Department of State’s Visa Bulletin for the month of October 2016 provided an overview of potential visa number availability in the coming months:
EB-2: Worldwide: Current
China: Up to three months
India: Up to four months
EB-3: Worldwide: The rapid forward movement of this final action date during the past year should generate a significant amount of demand for numbers. When such demand begins to materialize, the Visa Bulletin notes, it will be necessary to limit movement of this final action date.
China: Up to three months
India: Up to one week
Mexico: Will remain at the worldwide date
Philippines: Up to three weeks
EB-4: Current for most countries
El Salvador, Guatemala, and Honduras: up to two months
EB-5: Current for most countries
China-mainland born: Slow forward movement
The Visa Bulletin notes that the above projections indicate what is likely to happen on a monthly basis through January based on current applicant demand patterns. However, determinations of the actual monthly final action dates are subject to fluctuations in applicant demand and a number of other variables, so the Visa Bulletin warns that these dates are not guaranteed.
2. State Dept. Announces Expiration of Two Employment-Based Visa Categories
The Department of State’s Visa Bulletin for the month of October 2016 announced the expiration at the end of September of the employment fourth preference “Certain Religious Workers (SR)” category and the I-5 and R-5 employment fifth preference categories.
Employment fourth preference SR. The non-minister special immigrant program expires on September 30, 2016. No SR visas may be issued overseas, or final action taken on adjustment of status cases, after midnight on September 29, 2016. Visas issued before that date will only be issued with a validity date of September 29, 2016, and all individuals seeking admission as non-minister special immigrants must be admitted into the United States by midnight on September 29, 2016.
The final action date for this category has been listed as “Unavailable” for October. The Visa Bulletin notes that if there is legislative action extending this category for FY 2017, the final action date would immediately become “Current” for October for all countries except El Salvador, Guatemala, and Honduras, which would be subject to a June 15, 2015, final action date.
Employment fifth preference I5 and R5. I5 and R5 visas may be issued until the “close of business” on September 30, 2016, and may be issued for the full validity period. No I5 or R5 visas may be issued overseas, or final action taken on adjustment of status cases, after September 30, 2016.
The final action dates for the I5 and R5 categories have been listed as “Unavailable” for October. If there is legislative action extending them for FY 2017, the final action dates would immediately become “Current” for October for all countries except China-mainland born I5 and R5, which would be subject to a February 22, 2014, final action date.
Congress is expected to extend the EB-4 special religious worker and EB-5 immigrant investor categories as part of a bill to fund the federal government temporarily past September 30. The temporary extension is likely to last until early December. Stay tuned.
3. Sens. Grassley, Leahy Oppose Reauthorization of Unaltered EB-5 Regional Center Program; Rep. Goodlatte Introduces EB-5 Reform Bill
A lot has been happening the last few days in the EB-5 world. The regional center part of the EB-5 immigrant investor green card program is scheduled to expire on September 30, 2016. On September 8, Sens. Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.), chair and ranking member of the Senate Judiciary Committee, respectively, wrote a letter to Senate leadership opposing a straight reauthorization of the EB-5 regional center program without any changes. According to the letter, the EB-5 regional center program “has become plagued with fraud and abuse, and if not reformed it should be allowed to expire on September 30th.”
Then, late Friday afternoon, September 9, Rep. Bob Goodlatte (R-Va.), chair of the House Judiciary Committee, released a draft of an EB-5 reform bill. The 123-page bill would make significant changes to the EB-5 program, such as increasing the minimum investment amount from the current $500,000 to $800,000, and adding anti-fraud and securities law oversight provisions. The bill was re-released on September 12 with Rep. John Conyers (D-Mich.) as a co-sponsor. The revised bill contains a two-page addition for good faith defrauded investors. The revised bill was introduced as H.R. 5992.
Among other things, the bill would:
- Reauthorize the EB-5 regional center program for five years, until September 30, 2021
- Set aside 4,000 EB-5 visas for rural and “priority urban investment” areas to take effect October 1, 2016
- Allow investors 180 days after a regional center is terminated or debarred to associate the new commercial enterprise (NCE) with a new regional center or to invest in a new NCE
- Require investors to be at least 18 years old, effective after enactment
- Require an EB-5 investor’s tax returns for the last seven years
SECTION-BY-SECTION SUMMARY OF THE DRAFT GOODLATTE BILL
4. ICE Extends and Adds to Employment Authorization for Certain Syrian F-1 Nonimmigrant Students
In an earlier notice, the Department of Homeland Security’s Bureau of Immigration and Customs Enforcement (ICE) suspended certain requirements for F-1 nonimmigrant students whose country of citizenship is Syria and who have been experiencing severe economic hardship as a direct result of the civil war in Syria since March 2011. A new notice extends the effective date of that notice and expands the application of such suspension to students whose country of citizenship is Syria and who lawfully obtained F-1 nonimmigrant student status between the date of the original notice and September 9, 2016. The new notice was effective September 9, 2016, and will remain in effect until March 31, 2018.
F-1 nonimmigrant students granted employment authorization through the notice will continue to be deemed to be engaged in a “full course of study’ for the duration of their employment authorization if they satisfy the minimum course load requirement. This notice applies exclusively to F-1 nonimmigrant students whose country of citizenship is Syria and who were lawfully present in the United States in F-1 nonimmigrant status on or after April 3, 2012, through September 9, 2016, under INA § 101(a)(15)(F)(i), 8 USC § 1101(a)(15)(F)(i); and are:
- Enrolled in an institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment of F-1 students,
- Currently maintaining F-1 status, and
- Experiencing severe economic hardship as a direct result of the ongoing civil unrest in Syria since March 2011.
ICE records show that as of August 2016, approximately 700 Syrian F-1 visa holders in active status are covered by this notice.
5. DHS Announces Annual Limit for CNMI Transitional Workers
The Department of Homeland Security (DHS) announced on September 2, 2016, that the numerical limitation for the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) nonimmigrant classification for fiscal year (FY) 2017 (October 1, 2016, through September 30, 2017) is set at 12,998.
The notice announces the mandated annual reduction of the CW-1 numerical limitation and provides additional information about the new CW-1 numerical limit. Under the CW-1 program, employers in the CNMI can apply for temporary permission to employ foreign nationals who are ineligible for any existing employment-based nonimmigrant category under the Immigration and Nationality Act. The CW program is in effect until December 31, 2019.
DHS said it reduced the FY 2017 CW-1 cap by one to meet the CNMI’s existing labor market needs and provide opportunity for potential growth, while meeting a statutory requirement to reduce the cap each year. Because the cap was reached for FY 2016 on May 5, 2016, DHS decided “to preserve the status quo, or current conditions, rather than aggressively reduce CW-1 numbers for FY 2017.” The agency encourages CW-1 employers to file a petition for a CW-1 nonimmigrant worker as early as possible within 6 months of the proposed start date of employment. USCIS said it will reject a petition if it is filed more than 6 months in advance.
DHS reminded CNMI employers that the CW-1 program requires that the foreign worker be ineligible for any other employment-based nonimmigrant visa classification under U.S. immigration law, such as the H-2B classification for temporary or seasonal workers and the H-1B classification for workers in a specialty occupation. DHS urged CNMI employers to reevaluate whether their employees are eligible for any other existing employment-based nonimmigrant category and, if so, to use other U.S. nonimmigrant classifications when appropriate. For workers employed in the CNMI, there is no cap on H-2B or H-1B visas during the transition period ending December 31, 2019.
The announcement does not affect the status of current CW-1 workers unless their employer files for an extension of their current authorized period of stay. Approved petitions with an employment start date between October 1, 2016, and September 30, 2017, will generally count toward the 12,998 cap. The cap applies only to CW-1 principals. It does not directly affect anyone currently holding CW-2 status, which is for spouses and minor children of CW-1 nonimmigrants. However, CW-2 nonimmigrants may be indirectly affected because their status depends upon that of the principal CW-1.
6. DHS Alerts Employers Re Documentation Options in Wake of Flooding
The Department of Homeland Security (DHS) issued a notice on September 9, 2016, stating that the agency “is aware of the hardship and ongoing recovery efforts resulting from the recent flooding in areas such as Louisiana and Texas.” DHS noted that individuals from these affected areas who need to replace lost or damaged documents can consult Federal Emergency Management Agency (FEMA) fact sheets for information on replacing lost or damaged documents in Louisiana or Texas.
DHS reminded employers that they must complete Form I-9, Employment Eligibility Verification and, if enrolled in E-Verify, must create a case in E-Verify for all newly hired employees, including those affected by the flooding. DHS also reminded employers that they must accept receipts from employees who choose to present them when completing the I-9.
7. DHS Updates Lists of Officials Authorized to Perform Various Immigration Functions
The Department of Homeland Security (DHS) amended its regulations on September 9, 2016, to update provisions that list specific immigration officials authorized to perform various immigration functions, including the issuance of notices to appear, warrants of removal, and arrest warrants. DHS said the lists are outdated and do not reflect the current DHS organizational structure, so the agency updated the lists with the specific officials who are currently authorized to perform these various functions. DHS is also making some technical corrections to update nomenclature and outdated references in the affected provisions.
8. United States, Mexico Sign MOU To Combat Employment Discrimination
The U.S. Department of Justice (DOJ) and Mexico’s Ministry for Foreign Affairs have established a formal partnership to protect workers from discrimination based on citizenship, immigration status, and national origin. On September 1, 2016, Principal Deputy Assistant Attorney General Vanita Gupta, head of DOJ’s Civil Rights Division, and Mexican Ambassador Carlos Sada signed a memorandum of understanding (MOU) between the embassy and its consulates and the Division’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC).
The MOU states the objective as “recogniz[ing] the collaborative relationship between the Participants to protect Mexican workers in the United States of America from employment discrimination in hiring, firing and recruiting or referring for a fee, based on their citizenship, immigration status, and national origin; unfair documentary practices; and retaliation.” To achieve this objective, the United States and Mexico agree to collaborate to provide Mexican nationals with information, guidance, and access to education and training resources to help them understand their rights under the antidiscrimination provision of the Immigration and Nationality Act, and to facilitate the referral of appropriate allegations of discrimination, unfair documentary practices, and retaliation to OSC for investigation.
Among other things, OSC agrees to conduct training sessions on the application and enforcement of the antidiscrimination provision at a mutually determined time and place to appropriate consular staff identified by each Mexican consulate; attend and participate in appropriate forums organized by the Mexican consulates for Mexican nationals and employers involving topics under OSC’s jurisdiction; disseminate compliance and educational materials through the embassy to the Mexican consulates and Mexico’s stakeholders in other locations; and publicize the MOU to interested parties.
The MOU is available in English and Spanish.
9. New Publications and Items of Interest
The latest E-Verify webinar schedule from USCIS is available HERE.
The latest 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 30 immigration hotspots around the world.
The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, 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 for:
- 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.
An excerpt of the book is on the ABIL website.
The list price is $431, 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
10. ABIL Member/Firm News
H. Ronald Klasko recently participated in the “Lazy Days of Summer” Interactive CLE Series presented by Catholic Legal Services on Friday, August 26, 2016 in Miami, Florida. Mr. Klasko moderated the session “A-Z, E-2 to EB-5” and discussed considerations for contemplating prospective E to EB-5 petitions, nuances in direct EB-5 filings, EB-5 legislative initiatives, problem consulates/cases and considerations for USCIS v. consular processing, among other topics. Mr. Klasko also participated as a panelist on “Alternatives to the H Visa and Ways Around the H Cap.” He discussed H-1B1, E-3, TN, H-3, and J visa alternatives, whether it makes sense to file for PERM and forget the H-1B, ethical considerations for filing a number of H-1B petitions for the same client on behalf of different sponsors, and other topics on ethics.
Cyrus Mehta has authored a new blog post. “Harmonious Coexistence: New Parole for International Entrepreneurs and Old Entrepreneur Pathways Portal”
David Isaacson, of Mr. Mehta’s office, has written a new blog entry. “Fewer Rights in Pennsylvania Than Guantanamo: Some Reactions to the Third Circuit’s Decision in Castro v. Dep’t of Homeland Security”
Bernard Wolfsdorf and associates Robert Blanco and Joseph Barnett coauthored an article, “What Does the October Visa Bulletin Mean for EB-5 Industry?,” which appeared in the IIUSA EB-5 Regional Center Industry Weekly Report. The article is available on the Wolfsdorf Rosenthal Blog.
Wolfsdorf Rosenthal LLP is sponsoring the Invest in the USA (IIUSA) 2016 EB-5 Industry Forum in Los Angeles on October 10-11, 2016. Representatives from the firm will attend and will host guests at their booth. The conference will be held on the University of California at Los Angeles campus and will be attended by investment and economic development professionals from around the world. Mr. Wolfsdorf will speak at the conference. For more information or to register.
Stephen Yale-Loehr was quoted recently in an article about labor rights that are lacking for about 700 foreign workers in Hawaii. “It has the fig leaf of legality. This is inconsistent with the general notion in American values, if not law, that workers should be paid a fair wage and not be mistreated.” The article, “Hawaiian Seafood Caught by Foreign Crews Confined on Boats,” Associated Press, Sept. 8, 2016.
Mr. Yale-Loehr and his colleague Carolyn Lee co-wrote a summary analysis of the draft EB-5 reform bill released late on Friday, September 9, 2016, by Rep. Bob Goodlatte, chair of the House Judiciary Committee. Mr. Yale-Loehr and Ms. Lee noted that the draft is largely a reprisal of S. 1501, the main Senate EB-5 bill nearly enacted in late 2015, but contains some key differences that would significantly change the EB-5 immigrant visa program.
Mr. Yale-Loehr was quoted in “GOP Rep. Goodlatte Pushes for EB-5 Reform Bill,” published on September 12, 2016, in Law360. Mr. Yale-Loehr noted that although the bill contains some positive features, such as extending the program for five years, it also includes negative provisions. “Its retroactive effective date provisions are the most problematic. Many of the bill’s changes, such as an increase in the minimum investment amount from the current $500,000 to $800,000, would apply to investors who applied as long ago as June 1, 2015, over 15 months ago.” Mr. Yale-Loehr said that is unfair to investors who applied in good faith under the then-applicable rules. “It also poses problems for U.S. businesses, which may not know what to do with the extra money from investors that the Goodlatte bill would demand, especially if the project has already been completed. Overall, the Goodlatte bill is a poison pill for the EB-5 industry and foreign investors,” he said. The article is available by registering HERE.
11. 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