Headlines:

1. USCIS Publishes Long-Awaited Final Rule on Certain Employment-Based Visa Programs -USCIS has issued a final rule, effective January 17, 2017, to provide greater flexibility for high-skilled foreign professionals. The new regulations also codify current informal administrative guidance about statutory provisions added in 2000.

2. USCIS Revises I-9 Employment Eligibility Verification Form -By January 22, 2017, employers must use only the new version of the I-9, dated 11/14/2016 N. Until then, they can continue to use either the version dated 03/08/2013 N or the new version.

3. USCIS Announces Final Rule on Fee Increases, Changes -USCIS recently published a final rule to increase the fees required for most immigration applications and petitions. The new fees will be effective December 23, 2016.

4. ABIL Global: United Kingdom -The United Kingdom is changing its immigration rules. Also, the High Court has ruled on a key Brexit case.

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 Publishes Long-Awaited Final Rule on Certain Employment-Based Visa Programs

U.S. Citizenship and Immigration Services (USCIS) has issued a final rule to provide greater flexibility for high-skilled foreign professionals. The new regulations also codify current informal administrative guidance about statutory provisions added in 2000. The regulations take effect on January 17, 2017.

USCIS previously made many of these clarifications through a series of non-binding policy memoranda over the past 15 years, with no definitive rules in place.

USCIS said the final rule is intended to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended the regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.

Among other things, the final rule is intended to:

• Clarify and improve longstanding policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which USCIS said will enhance consistency in adjudication.
• Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.
• Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.
• Clarify and expand when individuals may keep their priority dates when applying for adjustment of status to lawful permanent residence.
• Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:

1. They are the principal beneficiaries of an approved I-140 petition,
2. An immigrant visa is not authorized for issuance for their priority date, and
3. They can demonstrate that compelling circumstances exist that justify the agency’s issuing an employment authorization document in its discretion.

Such employment authorization may only be renewed in limited circumstances and only in one-year increments.

• Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six-year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements, and protections for whistleblowers.
• Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
• Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.
• Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Forms I-766) for certain individuals who apply on time to renew their EADs.
• Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day time frame.

USCIS received nearly 28,000 comments on the proposed rule from a broad range of entities and individuals.

COMMENTS SUBMITTED BY THE ALLIANCE OF BUSINESS IMMIGRATION LAWYERS

USCIS ANNOUNCEMENT

FINAL RULE

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2. USCIS Revises I-9 Employment Eligibility Verification Form

U.S. Citizenship and Immigration Services (USCIS) recently published a revised version of Form I-9, Employment Eligibility Verification. By January 22, 2017, employers must use only the new version, dated 11/14/2016 N. Until then, they can continue to use either the version dated 03/08/2013 N or the new version.

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

Other changes include:

• The addition of prompts to ensure information is entered correctly.
• The ability to enter multiple preparers and translators.
• A dedicated area for including additional information rather than having to add it in the margins.
• A supplemental page for the preparer/translator.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

USCIS said the revised I-9 is also easier to complete on a computer. Changes include drop-down lists and calendars for filling in dates, on-screen instructions for each field, access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

ANNOUNCEMENT

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3. USCIS Announces Final Rule on Fee Increases, Changes

U.S. Citizenship and Immigration Services (USCIS) recently published a final rule to increase the fees required for most immigration applications and petitions. The new fees will be effective December 23, 2016.

Fees will increase for the first time in six years by a weighted average of 21 percent for most applications and petitions. USCIS said these increases include the costs associated with fraud detection and national security, service and case processing, and providing services without charge to refugee and asylum applicants and to others eligible for fee waivers or exemptions.

The final rule includes a table summarizing current and new fees. Applications and petitions postmarked or filed on or after December 23 must include the new fees or USCIS will not accept them.

USCIS said it is also offering a reduced filing fee for certain naturalization applicants with limited means.

Highlights of the fee rule include:

• A fee increase of $45, or 8 percent, from $595 to $640 for Form N-400, Application for Naturalization.

• A reduced filing fee of $320 for naturalization applicants with family incomes greater than 150 percent but not more than 200 percent of the Federal Poverty Guidelines. For 2016, this means, for example, that a household of four with an income between $36,000 and $48,600 per year could pay the reduced fee. Those eligible may apply for this option using the new Form I-942, Request for Reduced Fee.

• A fee increase from $550 or $600 to $1,170 for Form N-600, Application for Certificate of Citizenship, and N-600K, Application for Citizenship and Issuance of Certificate Under Section 322.
• A new fee of $3,035 for Form I-924A, Annual Certification of Regional Center.

USCIS ANNOUNCEMENT

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4. ABIL Global: United Kingdom

The United Kingdom is changing its immigration rules. Also, the High Court has ruled on a key Brexit case.

Changes to Immigration Rules

On November 3, 2016, a Statement of Changes to the Immigration Rules was set before Parliament. In relevant part, the raft of reforms includes the first stage of a two-phase package of changes to Tier 2 of the Points-Based System (PBS). The majority of these changes affect applications made on or after November 24, 2016, and include:

Tier 2 (General)

• The salary threshold for experienced workers is increasing to £25,000. New entrants will remain at £20,800 and some additional, minor exceptions apply.
• Individuals sponsored as Tier 2 (General) migrants before November 24, 2016, are only required to meet the previous salary threshold of £20,800.

Tier 2 (Intra-Company Transfer)

• The salary threshold for Tier 2 (ICT—Short-Term Staff) is increasing to £30,000.
• The salary threshold for Tier 2 (ICT—Graduate Trainee) is decreasing to £23,000, and the number of places allocated per company annually for this subcategory is increasing from five to twenty.
• Tier 2 (ICT—Skills Transfer) is closed to new applicants.

Ruling Issued on Brexit Case

In the case of R (on the application of Gina Miller and Ors) v The Secretary of State for the European Union, the High Court ruled that the government must first consult Parliament before giving notice of the UK’s withdrawal from the European Union. The government might appeal. If the appeal is denied, it could block or delay the Prime Minister’s proposed timetable of beginning ‘Brexit’ negotiations by March 2017.

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5. New Publications and Items of Interest

Press release on entrepreneurial immigrants, Chobani’s founder. The Alliance of Business Immigration Lawyers has issued a press release in support of entrepreneurial immigrants such as Chobani’s founder, Hamdi Ulukaya, a Turkish immigrant of Kurdish descent. Chobani makes Greek yogurt and employs about 2,000 people in the United States, some of whom are refugees.

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

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6. ABIL Member/Firm News

H. Ronald Klasko participated as a discussion leader at the AILA Rome District—European, Middle East and Africa Chapter’s Fall Conference in Amsterdam, Netherlands. He was the discussion leader for “The Wolf of Wall Street: EB-5 Visa.” Topics included likely changes in EB-5 legislation and how to choose and work with a regional center.

Vincent Lau will speak at:

• Practising Law Institute, New York City, “PERM Modernization—Current Adjudication Trends and Anticipated Changes,” December 7, 2016
• American Immigration Lawyers Association Fundamentals Conference, Orlando, Florida, “PERM,” December 8, 2016
• Massachusetts Continuing Legal Education, Boston, Massachusetts, “PERM Overview,” December 15, 2016

Cyrus Mehta has authored several new blog entries. “Extreme Absurdity: A Response to the “Extreme Vetting” Questions Proposed By Potential DHS Secretary Kris Kobach” “Analysis of High Skilled Worker Final Rule”

Bernard Wolfsdorf will speak on “EB-5 Visa Availability: Strategies and Solutions to the Chinese Waiting Line” at the 2017 Las Vegas EB-5 & Investment Immigration Convention to be held January 13-14, 2016. The convention is sponsored by EB5 Investors Magazine. MORE INFORMATION OR TO REGISTER

Mr. Wolfsdorf discussed “Hot Topics in Immigration,” including an update for investors, at the 29^th Annual American Immigration Lawyers Association’s California Chapters Conference, held in San Francisco, California, on November 10-12, 2016.

Stephen Yale-Loehr was quoted by the Associated Press on November 22, 2016, regarding Sen. Jeff Sessions’ (R-Ala.) views on immigration. Sen. Sessions is President-elect Donald Trump’s pick for U.S. Attorney General. “The attorney general has a lot of power when it comes to immigration. He has a seat at the table when important decisions are being made,” Mr. Yale-Loehr said.

Mr. Yale-Loehr was quoted by KQED News on November 30, 2016, in an article about a case pending before the Supreme Court involving prolonged detention of immigrants. He called the case a test of the due process rights of noncitizens: “This is an important case because it pits the constitutional rights of immigrants versus the government’s power to detain individuals.”

Mr. Yale-Loehr will present a “Visas After Graduation” workshop on December 6, 2016, at the Google building in New York City. The talk will explain the procedures for working immediately after graduating, working long-term in the United States, and ways to become a permanent resident. To learn more about the workshop, email Mr. Yale-Loehr at [email protected].

Mr. Yale-Loehr will speak at a Cornell Law School Alumni Association CLE breakfast program on December 7, 2016, in New York City. The presentation, “Prospects for Immigration Reform After the Presidential Election,” will explore the immigration challenges and opportunities facing the new administration. The CLE will also discuss how companies and individuals can prepare for such changes. REGISTER HERE

Mr. Yale-Loehr will speak on an EB-5 immigrant investor panel at a Practising Law Institute conference in New York City on December 7, 2016. The panel, “Challenges to Entrepreneurs Coming to the United States,” will cover various topics from differences between stand-alone investments and regional centers, updates on USCIS administrative initiatives, prospective regulatory changes, and more. REGISTER HERE

Mr. Yale-Loehr was quoted in recent weeks by a number of news outlets about President-elect Donald Trump’s possible immigration plans and related effects. The latest articles with his quotes include:

• NPR
• Law360
• New York Times
• Inside Higher Ed
• Las Vegas Sun
• ABA Journal
• Univision
• New American
• Univision
• Polizette
• Christian Science Monitor
• Bloomberg

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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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Headlines:

1. ABIL, Commenters Weigh In on USCIS Proposed Rule on Parole for Entrepreneurs -The comment period ended October 17, 2016, and yielded hundreds of comments.

2. DHS Extends TPS for Nepal -DHS is extending the designation of Nepal for TPS through June 24, 2018. The 60-day re-registration period runs through December 27, 2016.

3. CW-1 Visa Limit Reached for FY 2017, USCIS Says -USCIS has received a sufficient number of petitions to reach the numerical limit of 12,998 workers who may be issued CNMI-Only Transitional Worker visas or otherwise provided with CW-1 status for FY 2017.

4. ABIL Global: Australia, South Africa -Australia has announced changes to certain temporary activity visas effective November 19, 2016. Also, in South Africa, there are several options for the divorcing foreign spouse.

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. ABIL, Commenters Weigh In on USCIS Proposed Rule on Parole for Entrepreneurs

A recently proposed U.S. Citizenship and Immigration Services (USCIS) rule would, among other things, allow the agency to use its discretionary authority to parole into the United States founders of startups with a minimum $345,000 investment from certain qualified U.S. investors with established records of successful investments. The comment period ended October 17, 2016, and yielded hundreds of comments.

The Alliance of Business Immigration Lawyers (ABIL) took issue with various “miserly and inflexible provisions,” noting that the USCIS proposal “falls short in several material ways”; for example, by:

• Requiring voluminous and burdensome documentation to prove, by a preponderance of the evidence, “the substantial and demonstrated potential” likelihood that a start-up venture backed by a foreign entrepreneur will grow in revenue and add jobs rapidly;
• Offering no way for a parolee to switch from or to another lawful immigration status in the United States;
• Permitting startups and parolees too short a runway of initial and extended time for lift-off and stable cruising at higher elevations;
• Mandating an unreasonably high investment amount, limiting the source of start­up capital to a small group of venture capitalists, and barring consideration of “friends and family”-backed investments;
• Requiring re-submission of evidence and re-adjudication of the parole benefit virtually every time the entity’s ownership or strategic direction, or the job duties assigned to the foreign entrepreneur, may change after the initial approval of parole; and
• Omitting any direct path for the parolee to become a lawful permanent

ABIL made the following recommendations:

1. Start-up companies in “stealth mode” should be allowed to participate in this program.
2. The final rule should lower the parole and re-parole capital thresholds.
3. Qualifying investment amounts obtained within three years after creation of the start-up should count toward the USCIS-proposed threshold of $345,000.
4. The final rule should reduce the investment threshold of $345,000 for initial parole to $120,000.
5. The final rule should revise the definition of “well-positioned” to substantially assist a start-up.
6. The final rule should define “start-up entity” more clearly and accept reputable expert witness testimony.
7. The final rule should allow parole for entrepreneurs in startup companies formed more than three years before the parole application is filed.
8. The final rule should define “capital” broadly.
9. The final rule should allow investments from family members and close friends.
10. The final rule should include a more flexible definition of full-time employment.
11. The proposed rule’s requirement to file a new parole application whenever a material change occurs is impractical and onerous.
12. The final rule should extend parole beyond five years and allow a pathway to permanent resident status.
13. The final rule should complement and not supplant prior USCIS policy on entrepreneurs.
14. Spouses of entrepreneurial parole beneficiaries should automatically receive work authorization incident to status; i.e., without the need to apply separately for an Employment Authorization Document.
15. The final rule should authorize premium processing and expressly permit review by motion to reopen and reconsider and administrative appeal, also with premium processing, with the assured continuity of the parolee’s employment authorization until the receipt of the final USCIS decision.
16. The final rule should allow parolees to switch status to or from all employment-based nonimmigrant visa categories and to qualify for adjustment of status.
17. The final rule should apply the authority granted to approve applications for adjustment of status to that of a lawful permanent resident where the parolee’s inability to adjust is “other than through no fault of his or her own or for technical reasons.”

ABIL’s 20-PAGE COMMENT

PROPOSED RULE, published on August 31, 2016

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2. DHS Extends TPS for Nepal

The Department of Homeland Security announced on October 26, 2016, that it is extending the designation of Nepal for temporary protected status (TPS) effective December 25, 2016, through June 24, 2018. The 60-day re-registration period began October 26 and runs through December 27, 2016. DHS urged re-registrants to timely re-register during the 60-day period and not wait until their employment authorization documents (EADs) expire.

DHS said this extension will allow eligible Nepalese nationals (and those having no nationality who last habitually resided in Nepal) to retain TPS through June 24, 2018, as long as they otherwise continue to meet the eligibility requirements for TPS. The agency has determined that an extension is warranted because conditions in Nepal supporting its designation for TPS continue to be met.

DHS also set forth procedures necessary for nationals of Nepal (or those having no nationality who last habitually resided in Nepal) to re-register for TPS and to apply for renewal of their EADs with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who have previously registered for TPS under the designation of Nepal and whose applications have been granted. Certain nationals of Nepal (or those having no nationality who last habitually resided in Nepal) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions, if they meet: (1) at least one of the late initial filing criteria; and, (2) all TPS eligibility criteria (including continuous residence in the United States since June 24, 2015, and continuous physical presence in the United States since June 24, 2015).

USCIS will issue new EADs with a June 24, 2018, expiration date to eligible Nepal TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the time frames involved with processing TPS re-registration applications, DHS recognizes that not all re-registrants will receive new EADs before their current EADs expire on December 24, 2016. Accordingly, through the notice, DHS has automatically extended the validity of EADs issued under the TPS designation of Nepal for 6 months, through June 24, 2017. The notice explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on the Employment Eligibility Verification (Form I-9) and E-Verify processes.

NOTICE

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3. CW-1 Visa Limit Reached for FY 2017, USCIS Says

U.S. Citizenship and Immigration Services (USCIS) reported on October 21, 2016, that the agency has received a sufficient number of petitions to reach the numerical limit of 12,998 workers who may be issued Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) visas or otherwise provided with CW-1 status for fiscal year 2017. October 14, 2016, was the final receipt date for CW-1 worker petitions requesting an employment start date before October 1, 2017.

USCIS said it will reject CW-1 petitions received on or after October 15, 2016, that request an employment start date before October 1, 2017. This includes CW-1 petitions for extensions of stay that are subject to the CW-1 cap. USCIS will return the filing fees with any rejected CW-1 petition.

If an extension petition is rejected, the beneficiaries listed on that petition are not permitted to work beyond the validity period of the previously approved petition. Therefore, affected beneficiaries, including any CW-2 derivative family members of a CW-1 nonimmigrant, must leave the CNMI within 10 days after the CW-1 validity period has expired, unless they have some other authorization to remain under U.S. immigration law.

The following types of Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, are generally subject to the CW-1 cap: new employment petitions and extension of stay petitions.

All CW-1 workers are subject to the cap unless the worker has already been counted toward the cap in the same fiscal year. The CW-1 cap does not apply to CW-2 dependents.

USCIS encourages CW-1 employers to file a petition for a CW-1 nonimmigrant worker up to 6 months in advance of the requested employment start date, and to file as early as possible within that time frame. USCIS will reject a petition if it is filed more than 6 months in advance.

MORE INFORMATION ON THE CW-1 VISA CLASSIFICATION

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4. ABIL Global: Australia, South Africa

Australia has announced changes to certain temporary activity visas effective November 19, 2016. Also, in South Africa, there are several options for the divorcing foreign spouse.

Australia

Australia’s Department of Immigration and Border Protection has announced changes to certain temporary activity visas effective November 19, 2016. These changes do not affect the subclass 457 visa.

The following visas will be closed as of November 19:

(a) Subclass 401—Temporary Work (Long Stay Activity) Visa. This visa included four streams:

• Exchange stream—to work in a skilled position under a reciprocal staff exchange arrangement
• Sports stream
• Religious worker stream
• Domestic worker stream

(b) Subclass 402—Training and Research Visa, which has permitted occupational trainees to undergo training in Australia;

(c) Subclass 416—Special Program Visa, allowing participation in cultural exchanges;

(d) Subclass 420—Temporary Work (Entertainment Visa); and

(e) Subclass 488—Super Yacht Crew Visa.

Beginning on November 19, 2016, four new visa subclasses will be introduced (or continued):

1. Subclass 400—Temporary Work (Short Stay Specialist Visa)

The current subclass 400 visa enables the visa holder to live and work in Australia for a period of up to 3 months normally, but up to 6 months in special circumstances. It has proven to be an extremely useful visa. It allows the visa holder to undertake short-term highly specialized non-ongoing work or to participate in an activity or work relating to Australia’s interest.

2. Subclass 403—Temporary Work (International Relations Visa)

This visa is for people wishing to enter Australia on a temporary basis:

• In relation to a bilateral agreement;
• To represent a foreign government or to teach a foreign language in an Australian school;
• To undertake full-time domestic work for a diplomat;
• As a person with statutory privileges or immunities; or
• To participate in seasonal worker programs.

3. Subclass 407—Training Visa

This visa supplants the current subclass 402 Training and Research Visa.

4. Subclass 308—Temporary Activity Visa

This visa is available for those wishing to enter Australia on a temporary basis to:-

• Work in the entertainment industry;
• Participate in non-ongoing cultural or social activities;
• Observe or participate as an academic in a research project;
• Undertake full-time or religious work;
• Participate in a special program to enhance international relations and cultural exchange;
• Participate in high-level sports and/or training;
• Work in a skilled position under a staff exchange arrangement;
• Participate in an Australian government-endorsed event;
• Work as a super yacht crew member; or
• Undertake full-time domestic work on behalf of senior foreign executives.

Related regulations have not yet been published. We do not know how any of the above activities are defined and whether such definition will expand or limit availability.

Parent Visa. Australia has a contributory parent visa system whereby each parent must pay a sum of AUD$43,600 before the grant of this visa. The Minister of Immigration and Border Protection has stated that parents have made substantial claims on the Australian national medical benefit scheme far in excess of the sums paid by them to obtain the visa. There is a strong possibility that the sum payable by a parent to obtain this visa will be substantially increased in the not too distant future.

South Africa

There are several options for a divorcing spouse in South Africa. Under South Africa’s Immigration Act, 13 of 2002, a foreign national can qualify for a visa to reside in South Africa as a spouse under two common scenarios: where he or she is (1) in a spousal relationship with a South African citizen (or permanent resident); or (2) accompanying another foreign national to South Africa who is coming on a long-term, temporary residence visa, such as to work.

Much like counseling newlyweds about the possibility of divorce, amid the excitement of moving to a new country little is said in law about what happens if things fall apart in the spousal relationship.

But as a starting point, for an expat to qualify for a visa based on being a spouse, the couple either must be in a formally registered union—for example, a civil union or marriage—or, if unmarried, must have been in an unregistered life partnership for at least two years.

Foreign spouses of South Africans can also get permission to work without their needing, or their employers needing, to meet the usual requirements for a work visa. Spouses traveling into the country to accompany their non-South African spouses who will be working in South Africa do not qualify for permission to work (unless they qualify for a work visa in their own right).

If the spousal relationship fails, the Act and regulations require the foreign national to notify the Department of Home Affairs as soon as the relationship ends. At that point, the Department may withdraw the foreign spouse’s visa and he or she will be required to leave the country.

But what does one do in certain special situations; for example, if the spouse wishes to remain in South Africa after a divorce because the children need to remain in the country or because South Africa has become the spouse’s home and he or she has nowhere else to go?

These types of situations have created a number of policy challenges for the Department. As a matter of logic, almost invariably the spousal relationship will end before the marriage is formally ended by a divorce. However, it is not unknown for couples to separate acrimoniously and with the intent of divorcing (at which point, strictly speaking, the notice referred to above should be given to the Department) only to reconcile before such divorce. As a result, the Department has adopted the practice that notice of termination of the relationship does not need to be furnished to the Department until the divorce occurs.

However well-intentioned the Department’s policy is, it can create a problem where the foreign spouse is in the middle of divorcing and needs to extend his or her spousal visa. A corollary of the termination policy is that the spousal visa must be deemed to be valid until the divorce happens. But the prescribed requirements to extend a spousal visa include that the “principal” visa holder (or South African) must formally confirm support for the extension application. Getting that confirmation in the midst of an acrimonious divorce is often either unlikely to happen or may only be obtained at the price of the principal’s securing some benefit in the negotiations.

In practice, the way to address this is for the foreign spouse to approach the Department separately to explain the circumstances and seek permission to file the extension application without the need for the spouse’s support. The applicant must show “good cause” for this request. This term is not defined, which allows the Department considerable leeway in determining what constitutes good cause in any given case.

If the Department is duly persuaded, it will issue a written authorization recording which requirements have been waived. The applicant then applies for the extension of the visa and submits the authorization letter to document what is not required. If the request is declined, an administrative appeal may be made.

A potential downside to this process is that it is entirely on an ex parte basis. This means that if the other party/spouse has valid grounds to oppose the extension application, he or she will not have an opportunity to be heard until becoming aware of the visa extension. However, at that time, he or she can approach the Department on the matter, as it does have the discretion to withdraw a visa.

Assuming a divorce is granted and the spouse needs to remain in South Africa, he or she must notify the Department of this development. The Department may then withdraw the visa, but in practice the applicant can ask for the fact of the divorce to be noted and to be allowed a reasonable opportunity to apply for and obtain a more appropriate visa.

If the expat ex-spouse needs a work visa because he or she now needs to work, whether for self-support, to support the family, or just for the sake of his or her own dignity, the applicant must use the same procedure as described above to seek a waiver of the “offending” requirements of the work visa with which the applicant cannot reasonably comply due to his or her circumstances.

Again, if either the special request or the visa itself is declined, the applicant has the right to appeal that decision.

In conclusion, while the process for addressing the post-spousal relationship for the expat spouse in South Africa is somewhat inelegant, it does work.

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5. 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

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6. ABIL Member/Firm News

At the American Immigration Lawyers Association’s (AILA) annual conference, William Stock, of Klasko Immigration Law Partners, LLP, was installed as AILA’s 70^th National President. His installation speech at the opening plenary session highlighted the American success stories of immigrant Nobel prize winners and cancer researchers who achieved that success because they were welcomed as child refugees and undocumented immigrants. Mr. Stock also presented as a panelist on the conference’s first substantive educational panel, “Hot Topics with the AILA Executive Committee,” after the keynote.

Cyrus Mehta has authored several new blog entries. “The Guide for the Perplexed—Who Is Stuck in the Green Card Backlogs” “Reviving the National Interest Waiver for International Entrepreneurs”

Cora-Ann Pestaina, of Cyrus D. Mehta & Partners PLLC, has published a new blog entry. “BALCA Holds That Failure To Disclose A Wage Adjustment Is Not A Valid Denial Ground”

Bernard Wolfsdorf will moderate a panel, “Entrepreneur/Investor Visas in the Elusive H-1B/New Stem OPT Era,” on November 4, 2016, at the NAFSA Region XII Annual Conference in Palm Springs, California.

Mr. Wolfsdorf will discuss “Hot Topics in Immigration Law,” including an update on investors, at the 29th Annual American Immigration Lawyers Association (AILA) California Chapters Conference to be held in San Francisco from November 10-12, 2016.

Mr. Wolfsdorf recently spoke during AILA’s 2016 EB-5 Investors Summit in Washington, DC. His panel, “Advanced Source of Funds and Path of Funds Issues,” explored strategies for proving lawful source of funds, requests for evidence, and audit trends, among other issues.

Mr. Wolfsdorf recently spoke at the IIUSA EB-5 Industry Forum in Los Angeles, California, where he discussed “Visa Capacity.” The panel discussed the current backlog for the majority of investors to obtain a green card and possible solutions to the problem.

Stephen Yale-Loehr was quoted on October 27, 2016, by NBC News in “Obama’s ‘Rocket Docket’ Immigration Hearings Violate Due Process, Experts Say.” He noted that “[b]asic due process applies to everyone, whether you’re a citizen or not. These are complex cases; asylum is one of the most complex, so it’s hard to find a good attorney, particularly harder under these time constraints.”

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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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Headlines:

1. Congress Averts Government Shutdown, Extends Immigration Programs to December -The immigration-related programs extended by the bill include E-Verify, EB-5 regional centers, EB-4 non-ministerial religious workers, and Conrad 30 for J-1 medical workers.

2. USCIS No Longer Requires 2 Photos With Naturalization Application -All Form N-400 (Application for Naturalization) applicants, except those who reside overseas, no longer need to submit two passport-style photographs.

3. DHS Extends TPS for Guinea, Liberia, Sierra Leone for 6 Months -DHS is extending TPS benefits for beneficiaries under the designations of Guinea, Liberia, and Sierra Leone for 6 months “for the purpose of orderly transition before the designations terminate,” effective May 21, 2017.

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

5. ABIL Member/Firm News -ABIL Member/Firm News

6. Government Agency Links –Government Agency Links

Details:

1. Congress Averts Government Shutdown, Extends Immigration Programs to December

On September 29, 2016, President Barack Obama signed a continuing resolution (CR), H.R. 5325, that provides funding for the federal government through December 9, 2016. Among other things, the legislation extends four expiring immigration programs to December 9. The Senate passed the legislation 72-26 and the House of Representatives passed it 342-85. The CR allows Congress to return to work after the November 8 presidential election and take up an omnibus appropriations bill before the new deadline.

The immigration-related programs extended by the bill include E-Verify, EB-5 regional centers, EB-4 non-ministerial religious workers, and Conrad 30 for J-1 medical workers. EB-5 observers expect a battle between urban legislators like Sen. Chuck Schumer (D-NY), who wants to maintain the status quo, and rural legislators like Sens. Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.), who are adamant about getting more EB-5 visas for rural projects.

U.S. Citizenship and Immigration Services (USCIS) said it would update the information related to the EB-5 and EB-4 programs on its adjustment of status filing charts from the October 2016 Department of State Visa Bulletin shortly.

RELATED USCIS ANNOUNCEMENT

UPDATED VISA BULLETIN

FULL TEXT OF THE BILL

SECTION-BY-SECTION SUMMARY

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2. USCIS No Longer Requires 2 Photos With Naturalization Application

U.S. Citizenship and Immigration Services (USCIS) informed its stakeholder list on September 22, 2016, that all Form N-400 (Application for Naturalization) applicants, except those who reside overseas, no longer need to submit two passport-style photographs. USCIS now captures photographs when applicants appear at the Application Support Center (ASC) for their biometrics appointment. Applicants will be scheduled for a biometric service appointment at a local ASC for collection of their fingerprints, photos, and signature, regardless of their age.

USCIS noted that formerly, the agency waived the fingerprint requirement for applicants 75 years of age or older, which meant they were not required to appear at an ASC. However, now that the N-400 is processed electronically, those applicants do need to appear at an ASC, USCIS said. Applicants 75 and older do not need to pay the biometrics fee. The agency also noted that improved technology allows fingerprints to be captured for applicants of all ages. USCIS said it can make special arrangements to accommodate the needs of applicants who are homebound or hospitalized, known as “homebound processing.”

The agency said it will update the form’s instructions, and the Policy Manual and Guide to Naturalization, as soon as possible.

MORE INFORMATION ON HOMEBOUND PROCESSING

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3. DHS Extends TPS for Guinea, Liberia, Sierra Leone for 6 Months

The Department of Homeland Security (DHS) is extending temporary protected status (TPS) benefits for beneficiaries under the designations of Guinea, Liberia, and Sierra Leone for 6 months “for the purpose of orderly transition before the designations terminate,” effective May 21, 2017. After reviewing country conditions and consulting with the appropriate U.S. government agencies, DHS determined that conditions in Guinea, Liberia, and Sierra Leone no longer support their TPS designations. DHS noted that the widespread transmission of Ebola virus in the three countries that led to the designations has ended.

To provide for an orderly transition, current TPS beneficiaries will automatically retain their TPS, and the validity of their current employment authorization documents will be extended through May 20, 2017. Beneficiaries do not need to pay a fee or file any application, including for work authorization, to retain their TPS benefits through that date.

Although TPS benefits will no longer be effective as of May 21, 2017, DHS noted that TPS beneficiaries will continue to hold any other immigration status that they have maintained or acquired while registered for TPS. DHS said it urges those who do not have another immigration status to use the time before the terminations become effective in May to prepare for and arrange their departures from the United States or to apply for other immigration benefits for which they may be eligible.

DHS ANNOUNCEMENT

FRENCH VERSION

FEDERAL REGISTER NOTICE PUBLISHED ON SEPTEMBER 26, 2016 FOR GUINEA, LIBERIA, AND SIERRA LEONE

INFORMATION ABOUT TPS

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4. New Publications and Items of Interest

The Economic and Fiscal Consequences of Immigration, a new report by the National Academies Press. A free PDF is available via a link from that page by registration. A prepublication copy can also be read online via a link from the same page. Related articles are at New York Times and National Review.

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

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5. ABIL Member/Firm News

Klasko Immigration Law Partners, LLP, was named one of the 2016 Best Places to Work by the Philadelphia Business Journal. The contest was based on employee surveys. Klasko Immigration Law Partners has offices in Philadelphia, New York, and Chicago and provides top-tier legal services to individuals, multinational corporations, small companies, universities, and hospitals.

Charles Kuck and Robert Loughran recently presented a webcast, “EB-5 Regional Center Pilot Program’s Likely Renewal: What Your Firm Should Be Aware Of,” organized by The Knowledge Group. The webcast was presented on September 27, 2016.

Robert Loughran was interviewed on September 21, 2016, by ABC affiliate KVUE regarding the new parole immigration status for entrepreneurs.

Mr. Loughran, Foster LLP partner, presented “Foster’s Point of View on the Consequences of the 2016 Election” at Foster LLP’s Fall Immigration Update Seminar in Austin, Texas, held on September 22, 2016.

Cyrus Mehta has authored a new blog entry. “Will the Disruption of the H-1B Lottery Force Change for the Better?” Also, David Isaacson, of Mr. Mehta’s office, has authored “Expansion of the Provisional Waiver: Good News But Could Be Better”

Stephen Yale-Loehr was quoted in the Cornell Daily Sun on September 30, 2016, in “Law Professor Addresses Flaws, Evolution of U.S. Immigration Policy,” an article discussing a talk he gave on the presidential candidates’ views on immigration. Among other things, he assured the audience that whether Donald Trump or Hillary Clinton wins the presidency, “it takes time to make changes in our immigration system. You don’t have to worry that these things are going to happen overnight. So don’t worry, nothing is really going to happen in 2017.”

Mr. Yale-Loehr was quoted in “EB-5 Temporary Extension Expected,” published by China Daily USA on September 26, 2016. “The EB-5 program will survive a few more weeks thanks to its inclusion in the continuing resolution. The continuing resolution will give congressional lawmakers time to try to negotiate an EB-5 reform package,” he noted. “Stay tuned for an epic battle between urban legislators like Senator Chuck Schumer (D-NY), who wants to maintain the status quo, and rural legislators like Senators Chuck Grassley (R-Iowa) and Patrick Leahy (D-Vt.), who are adamant about getting more EB-5 visas for rural projects.”

Mr. Yale-Loehr was quoted by the Associated Press in a follow-up article about labor rights that are lacking for about 700 foreign workers in Hawaii. Various news outlets picked up the story, including ABC News. “Fishermen Who Fled Slavery in San Francisco Sue Boat Owner,” published on September 22, 2016, notes that the Hawaii Longline Association, representing fishing boat owners, has created a universal crew contract that will be required on any boat wanting to sell fish in California’s seafood auction starting October 1. The contracts let owners continue to set their own minimum salaries, allow workers to spend the entire year at sea (15 trips, 10 to 40 days each), and reiterate that they must remain on board with passports held by owners. Mr. Yale-Loehr said the new contract “reinforces the current deplorable situation by emphasizing that the crew members have no real rights. Congress should repeal the loophole that exempts U.S. fishing captains from having to provide basic labor protections to their crew.”

Mr. Yale-Loehr was quoted in “Examining Goodlatte’s EB-5 Bill, As Deadline Looms,” published by Law360 on September 19, 2016. He said, “I think that there is serious concern about the
EB-5 program, and people want to make reforms. But I think that people realize that it’s too much to expect that Congress can make those reforms by September 30.”

Mr. Yale-Loehr was quoted in “Congress Eyes EB-5 Changes,” published by China Daily USA on September 15, 2016. He noted that the retroactivity provision of an EB-5 bill being considered in Congress would likely raise legal concerns. “The US Supreme Court has held that Congress should not normally change the rules in the middle of the game. Fundamental notions of fairness counsel against applying new rules to conduct that predates the legislation, since individuals should have an opportunity to know what the law is and to conform their conduct accordingly. The retroactivity provision would surely be challenged in court,” said Mr. Yale-Loehr. He said that he believes most current investors who have already filed EB-5 petitions would attempt to comply with whatever new rules Congress enacts. But if the changes ever became law, they “would certainly dampen enthusiasm for the EB-5 program. That would be unfortunate since the program creates thousands of jobs each year for U.S. workers at no expense to American taxpayers.”

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6. 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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Headlines:

1. USCIS Proposes Rule on Parole for Certain International Entrepreneurs -has published a proposed rule to allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so they may start or scale their businesses in the United States.

2. ETA Announces iCERT Enhancement to Streamline H-2A, H-2B Processes for Employers -The iCERT system now permits submission of electronic documentation at the time of filing and while an H-2A or H-2B application is pending review.

3. OFLC Publishes Names, Other Info on Foreign Labor Recruiters -By providing the Foreign Labor Recruiter List, OFLC said the agency “is providing a greater level of transparency to the H-2B worker recruitment process and facilitating information sharing between the Department and other agencies and the public.”

4. USCIS Reminds About Immigration Relief in Wake of Louisiana Flooding -USCIS issued a reminder of immigration relief measures that may help people affected by unforeseen circumstances, such as disasters like the recent severe storms and flooding in Louisiana.

5. USCIS Announces End of H-1B Workload Transfer Transition Period -USCIS announced that the H-1B workload transfer transition period ended August 31, 2016.

6. September Visa Bulletin Shows Movement in Final Action Dates -The Department of State’s Visa Bulletin for the month of September 2016 shows much movement in the final action dates for various employment categories. For example, in August, the EB-1 final action date for China was January 1, 2010; in September it is Current.

7. USCIS To Allow Additional Applicants for Provisional Waiver Process -USCIS announced a final rule, effective August 29, 2016, that expands the existing provisional waiver process to allow certain individuals who are family members of U.S. citizens and lawful permanent residents (LPRs) and who are statutorily eligible for immigrant visas to more easily navigate the immigration process. USCIS said it expects to update its Policy Manual in the coming weeks to provide guidance on how it makes “extreme hardship” determinations.

8. DHS Announces 18-Month Redesignation, Extension of TPS for Syria -For current Syria TPS beneficiaries, the 60-day re-registration period began August 1, 2016, and runs through September 30, 2016. Certain Syrian nationals and persons without nationality who last habitually resided in Syria may apply for TPS during the 180-day initial registration period that began August 1, 2016, and runs through January 30, 2017.

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

Details:

1. USCIS Proposes Rule on Parole for Certain International Entrepreneurs

U.S. Citizenship and Immigration Services (USCIS) has published a proposed rule allowing certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so they may start or scale their businesses in the United States.

The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.” Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:

• Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
• Whose startup was formed in the United States within the past three years; and
• Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:

• Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
• Receiving significant awards or grants (at least $100,000) from certain federal, state, or local government entities; or
• Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entities in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue, or job creation.

USCIS proposes that once the application for entrepreneurial parole is approved, the applicant and family members must leave the United States to be granted parole; they may not change to nonimmigrant status within the United States. Proving eligibility as an International Entrepreneur will require a $1,200 filing fee, completion of an Application for Entrepreneur Parole (Form I-941) and the submission of extensive evidence. USCIS will review the evidence and approve or deny the application with no right of rehearing or appeal.

Reaction. Some believe that venture capitalists and foreign entrepreneurs may be disappointed by this proposed rule. They may see the benefit of entrepreneurial parole as too little and too short in return for the substantial effort needed to meet the requirements. Moreover, they may be disappointed to learn that the USCIS proposal fails to take into account the harm associated with a revocation of parole (whether based on material business changes or otherwise) and the absence of any administrative or judicial review. Also disappointing is the fact that the proposed regulation would offer no pathway to lawful permanent resident status. However, if USCIS receives compelling and substantiated comments, the final rule could become a viable avenue to jump-starting innovation, job creation, and economic growth.

While this proposed rule may be useful for entrepreneurs to obtain temporary status in the United States, it does not provide any path to permanent residence. Entrepreneurs who want to live and work in the United States permanently will have to await guidance on a permanent residence option—national interest waivers for entrepreneurs. Guidance on that is expected shortly. Stay tuned.

The U.S. Alliance for International Entrepreneurs (USAIE) has written a summary and initial analysis of the proposed international entrepreneurs rule, available on the USAIE website.

Meanwhile, the notice of proposed rulemaking in the Federal Register invites public comment for 45 days, after which USCIS will address the comments received. The proposed rule does not take effect with the publication of the notice of proposed rulemaking. It will take effect on the date indicated in the final rule when it is published in the Federal Register. PROPOSED RULE

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2. ETA Announces iCERT Enhancement to Streamline H-2A, H-2B Processes for Employers

The Department of Labor’s Employment and Training Administration (ETA) has implemented a new enhancement to the iCERT Visa Portal System related to the submission of applications for temporary labor certification under the H-2A and H-2B temporary visa programs. The enhancement is intended to reduce burdens on employers and streamline processing of applications. As of August 26, 2016, the iCERT system permits submission of electronic documentation at the time of filing and while an H-2A or H-2B application is pending review.

ETA believes this new feature will eliminate the need for the employer (or, if applicable, its authorized agent or attorney) to submit responsive documents via U.S. mail, email, or fax, and will result in a more efficient review of applications by connecting the responsive documents directly to the Office of Foreign Labor Certification (OFLC) analysts assigned to the application.

ETA also noted that this new feature will enable an iCERT account holder to view all its pending H-2A or H-2B applications and select the application for which it wishes to upload documents electronically. Once a pending application is selected, the iCERT account holder associates one or more electronic documents with a response type (e.g., Response to NOD, Response to NOA) for more efficient storage and retrieval by the OFLC analyst assigned to the application. To maximize electronic security, the iCERT system will only accept electronic documents in Microsoft Word (.doc or .docx), Adobe Acrobat Portable Document Format (.pdf), or text (.txt) file formats.

ANNOUNCEMENT

ADDITIONAL DETAILS

To review the features of this new iCERT System enhancement, see the Quick Start Technical Guide.

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3. OFLC Publishes Names, Other Info on Foreign Labor Recruiters

The Office of Foreign Labor Certification (OFLC) is publishing a list of the names of foreign labor recruiters and the identity and location of persons or entities hired by or working for the recruiter that employers have indicated they engaged, or planned to engage, in recruiting prospective H-2B nonagricultural workers to perform the work described on their Form ETA-9142B, H-2B Application for Temporary Employment Certification.

By providing this Foreign Labor Recruiter List, OFLC said the agency “is providing a greater level of transparency to the H-2B worker recruitment process and facilitating information sharing between the Department and other agencies and the public.” Among other things, by maintaining and publishing a list of foreign labor recruiters, OFLC said it “is better poised to enforce recruitment violations, and workers are better protected against fraudulent recruiting schemes by enabling them to verify whether a recruiter is in fact recruiting for legitimate H-2B job opportunities in the United States.” OFLC noted that it “does not endorse or vouch for any foreign labor agent or recruiter” on the list, and inclusion does not signify that the recruiter is complying with the H-2B program. “The list is simply a list of current recruiters being used by employers in the H-2B program,” OFLC said.

OFLC noted that the list identifies the last six digits of the Chicago National Processing Center case number associated with the Form(s) ETA-9142B in which an employer identified the foreign labor recruiter. The six-digit number can be used to look up the H-2B Job Order and Application for Temporary Employment Certification in the H-2B Public Job Registry by entering the number into the ETA Case Number field, selecting “H-2B” in the Case Type field, and clicking on “Search.”

THE LIST, which will be updated quarterly.

FAQs on the list have been posted as “2015 H-2B IFR FAQs Round 16”

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4. USCIS Reminds About Immigration Relief in Wake of Louisiana Flooding

U.S. Citizenship and Immigration Services (USCIS) issued a reminder on August 19, 2016, of immigration relief measures that may help people affected by unforeseen circumstances, such as disasters like the recent severe storms and flooding in Louisiana.

USCIS noted that these measures may be available upon request:

• Change of nonimmigrant status or extension of nonimmigrant stay for an individual currently in the United States, even if the request is filed after the authorized period of admission has expired
• Re-parole of individuals previously granted parole by USCIS
• Expedited processing of advance parole requests
• Expedited adjudication of requests for off-campus employment authorization for F-1 students experiencing severe economic hardship
• Expedited adjudication of employment authorization applications, where appropriate
• Consideration of fee waivers due to an inability to pay
• Assistance for those who received a Request for Evidence or a Notice of Intent to Deny but were unable to appear for an interview, submit evidence, or respond in a timely manner
• Replacement of lost or damaged immigration or travel documents issued by USCIS, such as a Permanent Resident Card (green card)
• Rescheduling of a biometrics appointment

USCIS said requesters should “explain how the severe storms or flooding created a need for the requested relief.”

ANNOUNCEMENT

MORE INFORMATION

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5. USCIS Announces End of H-1B Workload Transfer Transition Period

U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B workload transfer transition period ended August 31, 2016.

On July 1, 2016, as part of a workload transfer from the California and Vermont Service Centers, the Nebraska Service Center (NSC) began accepting certain H-1B and H-1B1 (Chile/Singapore Free Trade) I-129 petitions. The NSC also began accepting I-539 and I-765 applications for certain H-4 nonimmigrants that are concurrently filed with an I-129.

The California and Vermont Service Centers continued to accept these I-129 petitions, and any concurrently filed I-539 and I-765 applications, during the transition period until August 31. Starting September 1, only the NSC is accepting them. USCIS may reject any misfiled petitions or applications.

The following Form I-129 same-employer-without-change petitions have not been transferred to the Nebraska Service Center and will continue to be accepted only at the California Service Center, if:

• The petition is for an employer that is statutorily exempt from the cap; or
• The beneficiary is employed at a qualifying cap-exempt institution, entity or organization.

FILING ADDRESSES AND CAP-EXEMPT FILING INSTRUCTIONS

LATEST USCIS ANNOUNCEMENT

DETAILS RELEASED JULY 1, 2016

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6. September Visa Bulletin Shows Movement in Final Action Dates

The Department of State’s Visa Bulletin for the month of September 2016 shows much movement in the final action dates for various employment categories. For example, in August, the EB-1 final action date for China was January 1, 2010; in September it is Current. The August EB-2 final action date for China was January 1, 2010; in September it has moved forward to June 1, 2013. Dates in several categories were specified in August for El Salvador, Guatemala, and Honduras; in September, that column has been dropped and all chargeability areas except those listed for China-mainland born, India, Mexico, and Philippines are Current.

VISA BULLETIN FOR SEPTEMBER 2016

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7. USCIS To Allow Additional Applicants for Provisional Waiver Process

U.S. Citizenship and Immigration Services (USCIS) announced a final rule, effective August 29, 2016, that expands the existing provisional waiver process to allow certain individuals who are family members of U.S. citizens and lawful permanent residents (LPRs) and who are statutorily eligible for immigrant visas to more easily navigate the immigration process.

USCIS noted that the provisional waiver process “promotes family unity by reducing the time eligible individuals are separated from their family members while they complete immigration processing abroad, while also improving administrative efficiency.”

The agency said the final rule builds on a process established in 2013 to support family unity. Under that process, certain immediate relatives of U.S. citizens can apply for provisional waivers of the unlawful presence ground of inadmissibility, based on the extreme hardship their U.S. citizen spouses or parents would suffer if the waiver were not granted. The final rule expands eligibility for the provisional waiver process to all individuals who are statutorily eligible for the waiver of the unlawful presence ground of inadmissibility. Until now, only immediate relatives of U.S. citizens were eligible to seek such provisional waivers before departing the United States for the processing of their immigrant visas. Those eligible for the provisional waiver process under the 2013 rule are only a subset of those eligible for the waiver under the statute.

To qualify for a provisional waiver, applicants must establish that their U.S. citizen or lawful permanent resident spouses or parents would experience “extreme hardship” if the applicants are not allowed to return to the United States.

USCIS said it expects to update its Policy Manual “in the coming weeks” to provide guidance on how it makes “extreme hardship” determinations. The final rule also makes changes to Form
I-601A, Application for Provisional Unlawful Presence Waiver. These changes will go into effect along with the final rule.

USCIS ANNOUNCEMENT

FINAL RULE

UPDATED I-601A

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8. DHS Announces 18-Month Redesignation, Extension of TPS for Syria

The Department of Homeland Security has redesignated Syria for temporary protected status (TPS) and extended the existing Syria TPS designation from October 1, 2016, through March 31, 2018. Nationals of Syria, or persons without nationality who last habitually resided in Syria, can register or re-register for TPS in accordance with the notice.

For current Syria TPS beneficiaries, the 60-day re-registration period began August 1, 2016, and runs through September 30, 2016. Syrian nationals and persons without nationality who last habitually resided in Syria and have: (1) continuously resided in the United States since August 1, 2016, and (2) been continuously physically been present in the United States since October 1, 2016, may apply for TPS during the 180-day initial registration period that began August 1, 2016, and runs through January 30, 2017.

The 18-month extension allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Syria TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of March 31, 2018. USCIS said it recognizes that some re-registrants may not receive their new EADs until after their current work permits expire. Therefore, USCIS is automatically extending for an additional six months current TPS Syria EADs with a September 30, 2016, expiration date. These existing EADs are now valid through March 31, 2017.

ANNOUNCEMENT, which includes additional details

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9. New Publications and Items of Interest

The Department of Labor’s Office of Foreign Labor Certification (OFLC) will host a webinar, “Employer Filing Tips and Best Practices for Preparing and Submitting H-2B Prevailing Wage Requests and H-2A/H-2B Labor Certification Applications,” on Tuesday, September 13, 2016, from 12 noon to 4 pm EST. The webinar is designed to educate stakeholders, program users, and other interested members of the public on recent program workload trends, common deficiencies, and best practices associated with employer requests for H-2B prevailing wage determinations and applications for temporary labor certification under the H-2A and H-2B visa programs. OFLC said its objective for the webinar is to provide technical assistance to employers (and, if applicable, their authorized attorneys or agents) that will improve the quality of applications submitted to the OFLC. Topics will include recent program updates and initiatives designed to improve case processing and transparency of the decision-making process; how to avoid common deficiencies and frequent errors when preparing job orders and applications; helpful practice tips to ensure quality job orders and applications are submitted for processing; and best practices or quality prevailing wage requests and labor certification applications from the 2016 filing season. Details on how to join the webinar are below:

EVENT NUMBER: 744 257 619

1. Go HERE
2. If prompted, enter contact information (first name, last name, email address)
3. If prompted, enter event password: Welcome!25
4. Click on “Join Now”
5. To join and hear the audio, dial the toll-free number 800-369-1983 and enter access code 2846236 to hear the audio portion of the webinar or use the audio function of the WebEx software to stream audio.

The Systematic Alien Verification for Entitlements (SAVE) program published a recent blog highlighting SAVE enhancements within the last six months. The blog discusses the updated SAVE website, the new resources page, and the USCIS director’s YouTube video celebrating SAVE’s 30^th anniversary. BLOG

Updated labor certification fact sheets. The Office of Foreign Labor Certification has posted updated program fact sheets with third-quarter FY 2016 selected statistics. Reports are derived from program data as of June 30, 2016. The updated fact sheets include:

• Permanent Labor Certification Program
• Prevailing Wage Determination Program
• H-1B Temporary Visa Program
• H-2A Temporary Agricultural Visa Program
• H-2B Temporary Nonagricultural Visa Program

UPDATED FACT SHEETS

USCIS seeks input on Policy Manual. You can submit feedback on proposed changes to USCIS policy guidance HERE.

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

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10. ABIL Member/Firm News

The following ABIL members and colleagues were listed in Best Lawyers in America 2017:

• Laura Danielson (Fredrikson & Byron, P.A.)
• Bryan Funai (Masuda, Funai, Eifert & Mitchell, Ltd.)
• Steve Garfinkel (Garfinkel Immigration Law Firm)
• Mark Ivener (Ivener & Fullmer LLP)
• Ronald Klasko and William Stock (Klasko Immigration Law Partners, LLP)
• Charles Kuck (Kuck Immigration Partners LLC)
• Vincent Lau (Clark Lau LLC)
• Robert Loughran, Charles Foster, John Meyer, Jose Perez, Judy Lee, and Nestor Rosin (Foster, LLP)
• Sharon Mehlman and Shannon Barnes (Mehlman Barnes, LLP)
• Cyrus Mehta (Cyrus D. Mehta & Partners, PLLC)
• Angelo Paparelli (Seyfarth Shaw LLP)
• Julie Pearl (Pearl Law Group)
• William Reich (Serotte Reich & Wilson)
• Lynn Susser and Greg Siskind (Siskind Susser, PC)
• Bernard Wolfsdorf, Naveen Rahman-Bhora, and Avi Friedman (Wolfsdorf Rosenthal LLP)

Barbara Jo (BJ) Caruso will speak at the 2016 Upstate New York American Immigration Lawyers Association Conference on Friday, October 7, 2016.

Charles Foster, of Foster, LLP, authored “How Clinton Could Enact Broad Immigration Reform,” Law360, August 22, 2016.

Mr. Klasko, Daniel Lundy, and Rohit Kapuria, attorneys with Klasko Immigration Law Partners LLP, recently participated in the 2016 New York EB-5 Convention hosted by EB5 Investors Magazine. Mr. Klasko moderated the panels, “Understanding and Evaluating Investor Protections and How U.S. Securities Laws Can Affect Overseas Agents” and “China Issues.” Mr. Lundy participated as a panelist in “Putting Together an Approvable EB-5 Project.” Mr. Kapuria moderated the panel, “Understanding an EB-5 Capital Transaction.”

Mr. Klasko 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 versus consular processing, among other topics. He also participated as a panelist on “Alternatives to the H Visa and Ways Around the H Cap” and covered H-1B1, E-3, TN, H-3, and J visa and considerations, 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.

Mr. Kuck was quoted in “4 Signs You Aren’t Cut Out To Be An Immigration Attorney,” published on August 5, 2016, in Law360. Among other things, Mr. Kuck noted, “Caring too much might personally burn you out, but it’s not going to harm your clients. Caring too little will harm your clients. And so … if you think this is about just making money and filling out forms, you are definitely not cut out to be an immigration lawyer.” The article is available by registering.

Mr. Mehta has authored several new blog posts. “Who Should Get Notice When An I-140 Petition Is Revoked? It’s The Worker, Stupid!” “Trump vs. Outstanding Immigrant Khizr Khan”

Mr. Paparelli has authored a new blog post. “Venture Capitalists and Immigration Proponents Likely Disappointed by USCIS Proposed Entrepreneurial Parolee Rule”

Anand Sinha, of Cyrus D. Mehta & Partners PLLC, has authored a new blog post. “Close, But No Cigar! Meaning of Affiliation for Purposes of H-1B Cap Exemption”

William Stock, of Klasko Immigration Law Partners, LLP, was quoted extensively in “Is Trump Plan ‘Systematic Effort’ To Derail Immigration?,” Bloomberg BNA, August 16, 2016, about U.S. presidential candidate Donald Trump’s proposal to vet immigrants for their adherence to American values. “We saw a lot of this after 9/11, where individuals from certain countries just never knew when their visa applications would be held up and were never told why they were held up,” Mr. Stock observed. He suggested that companies might “simply have to expand their facilities in other countries” if Mr. Trump’s vetting policy were put into practice.

Mr. Wolfsdorf will address the California State Bar Association as a panelist on September 29, 2016. His panel, “Immigration Visa Options for Investors, Innovators and Entrepreneurs,” will discuss immigrant and nonimmigrant visa options for those investing in and starting businesses in the United States.

Mr. Wolfsdorf and associates Joseph Barnett and Vivian Zhu co-authored “Updates on Minors as Primary EB-5 Applicants, Part 2: Practical Steps,” which was published on ILW.com on August 5, 2016. The article discusses the age-out problem due to the Chinese EB-5 backlog and the possibility of using minors as the primary applicants to avoid this issue.

Stephen Yale-Loehr is a founding member of the U.S. Alliance for International Entrepreneurs (USAIE) and helped draft a summary and initial analysis of the proposed international entrepreneurs rule, available on the USAIE website.

Mr. Yale-Loehr and his colleague Kristal Ozmun co-authored an article, “Visa Options for Employees Who Lose the H-1B Lottery,” which was published in Corporate Immigration 2016, edited by Nicolas Rollason of Kingsley Napley. The book can be viewed ONLINE.

Mr. Yale-Loehr was quoted recently in several publications about U.S. presidential candidate Donald Trump’s proposal to vet immigrants for their adherence to American values:

• “Trump’s Ideological Test for Immigrants is Absurd,” Denver Post, August 20, 2016. Mr. Yale-Loehr said, among other things, “It’s a problem to think about trying to vet every person for their commitment to some amorphous ideals that I think very few Americans would be able to agree on. Mr. Trump only continues to hurt any prospects for comprehensive immigration [reform]. It will take a bipartisan consensus to fix our broken immigration system, and his rhetoric only makes the issue more partisan and therefore makes it harder to enact any meaningful reforms.”
• “Trump’s ‘Deeply Un-American’ Stance on Immigration Prompts Legal Concerns,” The Guardian, August 17, 2016. Mr. Yale-Loehr said, “Immigration to the United States would grind to a near halt if millions of people are subject to background checks based on subjective criteria. How is a consular officer or a border inspector supposed to determine whether an applicant is sufficiently ‘American’ in his or her thinking?”
• “Is Trump Plan ‘Systematic Effort’ To Derail Immigration?,” Bloomberg BNA, August 16, 2016. Mr. Yale-Loehr noted that U.S. presidents can already prevent the admission of “noncitizens who advocate anti-democratic policies,” which is permitted under the Immigration and Nationality Act. In fiscal year 2015, he said, 46 temporary visa applicants and 1 green card applicant were barred from the United States under this provision. However, he noted, “it is one thing to apply this provision narrowly to government leaders. It is another to apply it to millions of immigrants and nonimmigrants.”
• “Donald Trump Calls for ‘Extreme Vetting’ and an Ideological Test for Would-Be Immigrants,” Los Angeles Times, August 15, 2016. Mr. Yale-Loehr noted that although the latest iteration of Mr. Trump’s policy does not specifically demand a religious test upon entering the United States, it still allows for capricious enforcement. “What one president thinks is important for American values, another president may deem not important. We don’t want an immigration policy subject to the vagaries of political opinion,” he said.
• “Why Trump’s Immigration Ideas Won’t Work,” Politico, August 15, 2016. Mr. Yale-Loehr said, “Immigration to the United States would grind to a near halt if millions of people are subject to background checks based on subjective criteria. This proposal would also cost billions of dollars to implement. Business people and visitors could not be able to plan quick trips to the United States because they would not know how long an ideological background check would take.”

Mr. Yale-Loehr was quoted in “Trump, Clinton and Immigration,” Marketplace.org, September 1, 2016. He noted, “President Obama deported more people in his first administration than President Bush had done under his administration.”

Mr. Yale-Loehr was quoted in “Migrant Mother, Son Sue U.S. Over Treatment in Detention,” Thomson Reuters Foundation, August 19, 2016 (and in a variety of newspapers about the same topic). If the case succeeds, Mr. Yale-Loehr noted, “it will send a strong signal to immigration authorities to clean up their act.”

Mr. Yale-Loehr was quoted in “Effort To Shrink Immigration Block Faces Steep Battle,” Law360, August 26, 2016. “It is rare for a court to restrict the scope of an injunction issued by another court,” he said,, adding that a New York federal court case that seeks to chip away at the block against President Barack Obama’s executive actions probably won’t be finished when Obama leaves the White House next year, meaning the case is “unlikely to benefit anyone in the near future.” The article is available by registering.

Mr. Yale-Loehr was quoted in “Inconsistencies Call Melania Trump’s Immigration Story Into Question,” on NPR’s All Things Considered, broadcast August 5, 2016. Mr. Yale-Loehr noted, “Donald Trump has made illegal immigration the centerpiece of his campaign. And even after President Obama said that he had been born in the United States, Donald Trump demanded to see written proof of that birth certificate. So I think what’s sauce for the goose is sauce for the gander.”

Mr. Yale-Loehr was quoted in “Democrats Demand Immigration Records for Melania Trump,” in the Washington Times on August 4, 2016. “Unfortunately, the Trump campaign has not released her immigration records, so no one knows for sure,” Mr. Yale-Loehr noted with respect to Mrs. Trump’s path to permanent residence and U.S. citizenship. “Donald Trump has said that anyone who has violated U.S. immigration laws must be dealt with in the harshest terms. Having raised the issue, Mr. and Mrs. Trump should answer these legitimate questions about Melania’s own immigration history.”

Mr. Yale-Loehr was quoted in Spanish in “http://www.univision.com/noticias/elecciones-2016/melania-habria-tenido-un-matrimonio-previo-al-de-donald-trump-sugiere-declaracion-de-exabogado-del-candidatoMelania habría tenido un matrimonio previo al de Donald Trump, sugiere declaración de exabogado del candidato,” on Univision on August 5, 2016. He noted, “Como Donald Trump ha hecho relevante el tema de la inmigración ilegal con tanta fuerza en esta campaña, yo pienso que le conviene a él y a Melania permitir que se publique su historial de inmigración para que sea escrutado y así podamos estar seguros de que ella hizo todo legalmente.”

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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

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Headlines:

1. Various Categories Oversubscribed for August, State Dept. Reports -High demand in various employment-based visa categories has required the establishment of cut-off dates in August.

2. USCIS Has Returned Unselected FY 2017 H-1B Cap-Subject Petitions -Those who submitted an H-1B cap-subject petition between April 1 and April 7, 2016, and do not receive a receipt notice or a returned petition by July 22, 2016, may contact USCIS.

3. DHS Extends Designation of El Salvador for Temporary Protected Status for 18 Months -The extension runs through March 9, 2018.

4. USCIS Launches ‘Refresh’ of InfoPass Appointment Scheduler -New features include a mapping function that USCIS said makes it easier to find a local office in the United States.

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. Various Categories Oversubscribed for August, State Dept. Reports

The Department of State’s Visa Bulletin for the month of August 2016 reports that various employment-based categories are oversubscribed:

India E4 and certain religious workers categories. The bulletin notes that there has been extremely high demand in the EB-4 and SR categories, primarily for Juvenile Court Dependent cases filed with U.S. Citizenship and Immigration Services (USCIS) for adjustment of status. This has now required the implementation of E4 and SR Application Final Action Dates for India, which has reached its per-country limit. The bulletin says that this action will allow the Department to hold worldwide number use within the maximum allowed under the FY 2016 annual limits. The India EB-4 and SR dates will become Current for October.

The August bulletin reflects a final action date of January 1, 2010, for EB-4 visas for special immigrants from India. This means that starting on August 1, 2016, applicants from India who filed Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant on or after January 1, 2010, will not be able to obtain an immigrant visa or adjust status until new visa numbers become available.

The July bulletin previously noted that the establishment of the EB-4 preference Final Action Date of January 1, 2010, “does not mean that applicants are now subject to a wait in excess of six years. That Final Action Date is intended only to stop any further use of numbers by applicants from those countries.”

China and India EB-1 categories. The continued high level of demand for EB-1 visa numbers for USCIS adjustment of status applicants has required the establishment of a cut-off date for August, the bulletin states. This has been done in an attempt to hold number use within the Worldwide EB-1 annual limit. The EB-1 date for these two countries will once again become Current for October, the first month of fiscal year 2017, the bulletin notes.

Worldwide, El Salvador, Guatemala, Honduras, Mexico, and Philippines E2 categories. Continued high demand for numbers for USCIS adjustment of status applicants has required the establishment of a date for August, the bulletin notes. This action has been required to hold number use within the Worldwide EB-2 annual limit. The date for these countries will once again become Current for October, the first month of fiscal year 2017.

VISA BULLETIN FOR AUGUST

ADDITIONAL DETAILS

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2. USCIS Has Returned Unselected FY 2017 H-1B Cap-Subject Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on July 8, 2016, that it has returned all FY 2017 H-1B cap-subject petitions that were not selected in the agency’s computer-generated random selection process. USCIS previously announced on May 2, 2016, that it had completed data entry of all selected cap-subject petitions.

Those who submitted an H-1B cap-subject petition between April 1 and April 7, 2016, and do not receive a receipt notice or a returned petition by July 22, 2016, may contact USCIS.

CURRENT ANNOUNCEMENT

PREVIOUS ANNOUNCEMENT ABOUT COMPLETING DATA ENTRY

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3. DHS Extends Designation of El Salvador for Temporary Protected Status for 18 Months

The Department of Homeland Security (DHS) is extending the designation of El Salvador for temporary protected status (TPS) for 18 months, from September 10, 2016, through March 9, 2018. The 60-day re-registration period began July 8, 2016, and runs through September 6, 2016. DHS said it is important for re-registrants to timely re-register during the 60-day re-registration period and not to wait until their employment authorization documents (EADs) expire.

The extension allows currently eligible TPS beneficiaries to retain TPS through March 9, 2018, so long as they otherwise continue to meet the eligibility requirements for TPS, DHS said. The agency said an extension is warranted because the conditions in El Salvador supporting the TPS designation continue to be met: “There continues to be a substantial, but temporary, disruption of living conditions in El Salvador resulting from a series of earthquakes in 2001, and El Salvador remains unable, temporarily, to handle adequately the return of its nationals.”

DHS also set forth procedures necessary for nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) to re-register for TPS and to apply for renewal of their EADs with U.S. Citizenship and Immigration Services (USCIS). Re-registration is limited to persons who have previously registered for TPS under the designation of El Salvador and whose applications have been granted.

Certain nationals of El Salvador (or those having no nationality who last habitually resided in El Salvador) who have not previously applied for TPS may be eligible to apply under the late initial registration provisions, if they meet: (1) at least one of the late initial filing criteria; and (2) all TPS eligibility criteria (including continuous residence in the United States since February 13, 2001, and continuous physical presence in the United States since March 9, 2001).

USCIS will issue new EADs with a March 9, 2018, expiration date to eligible El Salvador TPS beneficiaries who timely re-register and apply for EADs under this extension. Given the time needed for processing TPS re-registration applications, DHS said it recognizes that not all re-registrants will receive new EADs before their current EADs expire on September 9, 2016. Accordingly, DHS has automatically extended the validity of EADs issued under the TPS designation of El Salvador for 6 months, through March 9, 2017. The notice explains how TPS beneficiaries and their employers may determine which EADs are automatically extended and their impact on Employment Eligibility Verification (Form I-9) and the E-Verify processes.

NOTICE, which was published in 81 Fed. Reg. 44645-51 (July 8, 2016)

RELATED USCIS NOTICE

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4. USCIS Launches ‘Refresh’ of InfoPass Appointment Scheduler

U.S. Citizenship and Immigration Services (USCIS) recently launched a “refresh” of InfoPass, an online system that allows users to schedule appointments at USCIS offices.

New features include a mapping function that USCIS said makes it easier to find a local office in the United States and a visual style that matches the rest of uscis.gov, as well as a new web address.

ANNOUNCEMENT

INFOPASS

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5. New Publications and Items of Interest

USCIS EB-5 Immigrant Investor Program stakeholder engagement. USCIS will hold a “stakeholder engagement” in Miami, Florida, on Thursday, July 28, 2016, from 1 to 2:30 p.m. USCIS officials will provide EB-5 program updates, answer non-case-specific questions, and listen to feedback. Participants may attend in person at the USCIS Miami District Office or by teleconference. TO REGISTER

E-Verify resources now available in Nepali. USCIS announced on July 7, 2016, that the following E-Verify resources are now available in Nepali:

• SSA/DHS Further Action Notices
• SSA/DHS Referral Date Confirmation Notices
• E-Verify Participation Poster
• Form I-9 Employee Information Sheet
• Fact Sheet: Correct Your Immigration Records
• E-Verify Know Your Rights Flier

E-Verify materials are available in many languages at USCIS’s Foreign Languages Resources page.

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

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6. ABIL Member/Firm News

Various ABIL members and colleagues have been appointed to committees of the American Immigration Lawyers Association:

• AILA President: William Stock (Klasko)
• Board of Governors: Ari Sauer (Susser)
• DOL Liaison Committee: Vincent Lau, Loan Huynh (Danielson)—vice chair of the H-2B section, Robert White (Funai)
• DOS Liaison Committee: Avi Friedman (Wolfsdorf)
• CBP Liaison Committee: Lynn Susser, Rich Yemm (Wolfsdorf)
• USCIS Field Operations Liaison Committee: Bernard Wolfsdorf
• EB-5 Committee: H. Ronald Klasko—chair, Carolyn Lee (Yale-Loehr)—vice chair
• Asylum/Refugee Committee: Stephen Yale-Loehr—chair
• Verification and Worksite Committee: Sharon Mehlman—chair
• Distance Learning Committee: Lynn Susser
• Practice Management Committee: Greg Siskind (Susser)
• Mid-Year Conference Planning Committee: Ari Sauer (Susser)
• DMV/SSA Task Force: Shannon Barnes (Mehlman)—chair
• Access to Counsel Taskforce: Angelo Paparelli—vice chair, Cyrus Mehta
• Preparer Attestations/Forms: Cyrus Mehta

Several ABIL members and colleagues will speak at the 2016 New York EB-5 & Investment Immigration Convention in NYC on July 17-18, 2016:

• Mr. Klasko will moderate a panel on EB-5 issues in China. Robert Loughran‘s colleague Charles Foster will speak on that panel.
• Mr. Paparelli will moderate a panel on investor protections.
• Mr. Yale-Loehr will speak on a panel about the future of EB-5. His colleague Nick Hinrichsen will speak on a panel about understanding and aligning investor needs with the best available protections. His colleague Carolyn Lee will speak on a panel about I-829 issues.

FOR MORE INFORMATION

Mr. Loughran moderated, wrote the presentation, and co-presented a panel on the immigration and tax consequences of surrendering U.S. citizenship at the Investment Migration Forum’s “Advancing Investor Immigration and Citizenship” conference held June 6-8, 2016, in Geneva, Switzerland. MORE INFORMATION

Mr. Mehta‘s colleague, Michelle Velasco, has authored a new blog post. “Avoid the Confusion: Complying With the Simeio Decision One Year Later”

Mr. Mehta‘s colleague, David Isaacson, has authored a new blog post. “An Eventful Thursday for Immigration Law at the Supreme Court: United States v. Texas, Mathis v. United States, and What’s Next”

Mr. Paparelli was quoted in the Wall Street Journal in “Hundreds of Veterans Were Deported, Rights Group Says.”

Mr. Stock, Founding Partner of Klasko Immigration Law Partners, LLP, has begun his 2016-17 term as president of the 14,500-member American Immigration Lawyers Association (AILA). Mr. Stock leads the firm’s Corporate Immigration team. With more than 23 years of immigration law experience, he focuses his practice on employment-based immigration across industries including education, finance, information technology, life sciences, manufacturing, pharmaceutical, and retail. H. Ronald Klasko, managing partner of Klasko Immigration Law Partners and past president of AILA, said, “I’ve worked with Bill for more than twenty-three years now, so it’s easy to see why his passion for his work, coupled with his superior expertise in immigration law, has made him the perfect candidate to take the reins of [AILA].”

Mr. Wolfsdorf recently spoke at the Wailian 2016 Overseas Investment Seminar in Guangzhou, China, on the latest insights surrounding the EB-5 Immigrant Investor Program, including an update on the recent administrative and legislative efforts to extend and improve the job creation program. Mr. Wolfsdorf provided a detailed explanation of the Chinese EB-5 backlog and various options entrepreneurs may take to achieve immigration success as the China EB-5 cut-off date remains frozen.

Mr. Wolfsdorf was ranked as one of the United States’ “Most Powerful Employment Attorneys” for 2016 by Human Resource Executive (HRE). HRE is an industry publication informing more than 75,000 top-ranking human resource executives. The selection process for honorees of this distinguished award involved extensive research and vetting by HRE.

Mr. Wolfsdorf was also listed as one of the “Top 20 Lawyers in Immigration Law” in Lawdragon’s 2016 Guide To The Most Powerful Employment Lawyers. This is the fifth consecutive year in which Mr. Wolfsdorf has received this distinction. Lawdragon, a guide to the legal profession, selects honorees based on a combination of editorial research, submissions from law firms, and online nominations. MORE INFORMATION

Mr. Wolfsdorf was named by EB5 Investors Magazine as one of the “Top 25 Immigration Attorneys in the EB-5 Industry” for the third consecutive year. The selection was based on a combination of community member votes and input from EB5 Investors Magazine’s editorial board and in-house team. Candidates were evaluated based on their experience in the EB-5 industry, their track record, and their reputation within the field. MORE INFORMATION

Mr. Yale-Loehr was quoted in PolitiFact.com in “Carlos Beruff Wrongly Attacks Marco Rubio’s Record on Border Security and Immigration Bill,” published on July 8, 2016. He observed that since Rubio voted in favor of border security enhancements, “it is incorrect to assert that Senator Rubio failed to secure the border.”

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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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