Headlines:

1. H-1B Premium Processing Has Begun -On April 27, 2015, USCIS began premium processing for cap-subject H-1B petitions requesting it, and for petitions seeking an exemption from the H-1B cap for individuals with a U.S. master’s degree or higher.

2. District Court Grants Extension to DOL for H-2B Program -DOL will continue to process temporary labor certification applications under its 2008 H-2B regulations through May 15, 2015.

3. USCIS Resumes Premium Processing for H-2B Petitions -On April 20, 2015, USCIS resumed accepting premium processing requests for Form I-129 H-2B petitions.

4. China-Mainland Born EB-5 Category Oversubscribed in May; Philippines EB-3 Retrogresses -Heavy China-mainland born applicant demand has required the implementation of an employment fifth preference cut-off date to hold visa number use within the maximum for FY 2015. Also, the current rate of increase in demand in the Philippines EB-3 category has required the retrogression of this cut-off date for the month of May.

5. OSC Issues Technical Assistance Letter on E-Verify Issues -The OSC letter was in response to concerns about the possible conflict between the obligations that Texas state contractors and certain Texas state agencies have under federal E-Verify rules and their obligations under a Texas executive order, RP-80, and about possible antidiscrimination violations.

6. Sen. Grassley Introduces E-Verify Bill -Among other things, the bill would allow employers to use E-Verify before a person is hired and require employers to check the status of all current employees within three years.

7. ESL Teacher Indicted for Stealing Tens of Thousands From Student Visa Holders -The teacher allegedly stole more than $30,000 from at least six victims, in exchange for promises of green cards that she never fulfilled.

8. ABIL Global: Hong Kong -Hong Kong has suspended the Capital Investment Entrant Scheme; other developments have been announced.

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

10. ABIL Member/Firm News -ABIL Member/Firm News

11. Government Agency Links –Government Agency Links

Details:

1. H-1B Premium Processing Has Begun

On April 27, 2015, U.S. Citizenship and Immigration Services (USCIS) began premium processing for cap-subject H-1B petitions requesting it, and for petitions seeking an exemption from the H-1B cap for individuals with a U.S. master’s degree or higher. USCIS guarantees a 15-calendar-day processing time for premium processing.

For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date USCIS receives the request. However, for cap-subject H-1B petitions, including advanced-degree exemption petitions, the 15-day processing period began on April 27, 2015, regardless of the date on the Form I-797 receipt notice, which indicates the date on which the premium processing fee is received.

ANNOUNCEMENT

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2. District Court Grants Extension to DOL for H-2B Program

On April 15, 2015, the federal district court in the Northern District of Florida issued an order effectively allowing the Department of Labor (DOL) to continue issuing temporary labor certifications under the H-2B visa program through May 15, 2015. As a result, DOL will continue to process temporary labor certification applications under its 2008 H-2B regulations through May 15, 2015.

On March 4, the court vacated DOL’s 2008 H-2B regulations on the grounds that DOL lacks authority to issue regulations in the H-2B program. DOL and the Department of Homeland Security are working on regulations “to minimize future interruptions to the H-2B program,” U.S. Citizenship and Immigration Services said.

ANNOUNCEMENT

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3. USCIS Resumes Premium Processing for H-2B Petitions

On April 20, 2015, USCIS resumed accepting premium processing requests for Form I-129
H-2B petitions. USCIS had announced a temporary suspension of premium processing for all
H-2B petitions on March 9, 2015.

Employers are now able to file Form I-907, Request for Premium Processing Service, either:

• Together with a Form I-129, Petition for a Nonimmigrant Worker, H-2B cap exempt petition; or
• Separately to request premium processing service for a previously filed H-2B petition.

The current filing fee for the I-907 is $1,225.

ANNOUNCEMENT

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4. China-Mainland Born EB-5 Category Oversubscribed in May; Philippines EB-3 Retrogresses

The Department of State’s Visa Bulletin for May 2015 notes that heavy China-mainland born applicant demand has required the implementation of an employment fifth preference (EB-5) cut-off date of May 1, 2013, for investors from China to hold visa number use for that country within the maximum limit for FY 2015.

The bulletin notes that future visa availability will depend on a combination of demand for numbers being reported each month and the extent to which otherwise unused numbers may become available. An increase in visa demand by applicants with relatively early priority dates could make a retrogression of this cut-off date necessary before the end of the fiscal year. The Bulletin emphasizes that retrogression is not being predicted but cannot be ruled out. “It is extremely likely that this category will remain subject to a cut-off date indefinitely,” the Bulletin says.

The bulletin also reports that the cut-off date for the Philippines employment third (EB-3) preference has recently advanced very rapidly “in an effort to generate sufficient demand to fully utilize all available numbers.” The current rate of increase in demand has required the retrogression of this cut-off date for the month of May to July 1, 2007, in an attempt to hold number use within the annual limit for this preference category.

On April 13, 2015, the Visa Office attended the IIUSA 2015 EB-5 Regional Economic Advocacy Conference to address questions related to the implementation of a visa cutoff date for Chinese investors in the EB-5 visa category.

RESPONSES FROM THE VISA OFFICE TO QUESTIONS

VISA BULLETIN FOR MAY 2015

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5. OSC Issues Technical Assistance Letter on E-Verify Issues

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a technical assistance letter on April 15, 2015, in response to a query from an attorney expressing concerns about the possible conflict between the obligations that Texas state contractors and certain Texas state agencies have under federal E-Verify rules and their obligations under a Texas executive order, RP-80. The attorney also raised a concern about a potential violation of the antidiscrimination provision of the Immigration and Nationality Act (INA), which the OSC enforces.

First, the attorney expressed concern that RP-80’s requirement that state contractors use E-Verify for “all persons employed during the contract term to perform duties within Texas” conflicts with federal E-Verify rules. The attorney noted that as a general matter, federal E-Verify rules require E-Verify users to create E-Verify cases only for newly hired employees, whereas RP-80 requires Texas contractors to use E-Verify on all their current employees performing duties in Texas, whenever hired. Second, the attorney raised concerns about RP-80’s requirement that certain Texas state agencies use E-Verify for “all current and prospective agency employees.” The attorney observed that federal E-Verify rules bar all employers from creating E-Verify cases for an individual before he or she accepts a job offer and completes the employment eligibility verification form (I-9). Finally, the attorney expressed concern that under RP-80, a nationwide employer may seek “to root out employees” by “transferring some complainers into Texas after winning a Texas project” and running them through E-Verify, potentially violating the antidiscrimination provision.

In response, OSC noted that it cannot provide an advisory opinion on any set of facts involving a particular individual or entity, but that the agency can provide general guidelines. Regarding the apparent conflict between federal E-Verify rules and the provisions of RP-80, OSC noted that U.S. Citizenship and Immigration Services (USCIS), the agency that administers the E-Verify program and issues related guidance, has advised employers in Texas that federal E-Verify requirements are in effect at all times. Under federal E-Verify rules, OSC noted, most employers using E-Verify may only create E-Verify cases for new hires. However, federal E-Verify rules provide an exception for employers enrolled in E-Verify as federal (not state) contractors. Such federal contractors must create cases in E-Verify both for new hires and for existing employees performing work under the federal contract (if the employer has not already created a case for the employee), and may choose an option to create cases in E-Verify for all employees of the contractor.

OSC also noted that federal E-Verify rules also prohibit all employers from creating an E-Verify case for an individual who has not yet accepted a job offer and completed an I-9. Consequently, employers using E-Verify for prospective employees or using E-Verify for current employees, when not enrolled in E-Verify as federal contractors, “would violate federal E-Verify program rules—the same rules that the employers agreed to comply with in their MOU [memorandum of understanding] with USCIS.” OSC said that “[f]ailure to comply with E-Verify program rules could lead to possible termination or suspension from the E-Verify program.”

Regarding the attorney’s concern that an employer may violate the antidiscrimination provision of the INA when it uses E-Verify to improperly “root out employees,” the OSC noted that an employer that uses RP-80 to assign an employee to work in Texas for the purpose of reverifying the employee’s employment authorization “may raise concerns that it is treating that employee differently in the employment eligibility verification process based on perceived citizenship status or national origin.” The OSC said these concerns are heightened “where an employer requires an existing employee to provide new Form I-9 documentation to run the existing employee through E-Verify when not permitted to do so under federal E-Verify requirements.”

OSC’s TECHNICAL ASSISTANCE LETTER

MORE INFORMATION ABOUT RELATED MOUs

MOU FOR EMPLOYERS

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6. Sen. Grassley Introduces E-Verify Bill

Sen. Charles Grassley (R-Iowa) introduced the “Accountability Through Electronic Verification Act,” S. 1032, on April 21, 2015. Among other things, the bill would permanently authorize E-Verify, make employer E-Verify use mandatory, allow employers to use E-Verify before a person is hired, require employers to check the status of all current employees within three years, and require employers to re-verify an employee’s immigration status if his or her work authorization is due to expire.

Similar legislation (H.R. 1147) is pending in the House of Representatives.

Details of the Senate bill will be posted HERE as they become available.

SEN. GRASSLEY’S STATEMENT EXLAINING THE BILL

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7. ESL Teacher Indicted for Stealing Tens of Thousands From Student Visa Holders

Manhattan District Attorney Cyrus R. Vance, Jr., announced on April 6, 2015, the indictment of Jenetta Ferguson, an English as a Second Language (ESL) teacher, for allegedly stealing tens of thousands of dollars from European and Asian student visa holders by misleading the victims and falsely promising to provide them with green cards in exchange for cash payments. The defendant was charged in an indictment in New York State Supreme Court with grand larceny in the third and fourth degrees, as well as scheme to defraud in the first degree.

The defendant’s alleged victims include individuals from Italy, Uzbekistan, Bangladesh, and the Philippines, who were residing in the U.S. on student visas. According to the indictment and documents filed in court, Ms. Ferguson taught ESL at a school in Manhattan. Between March and September 2014, she allegedly approached the students and falsely informed them that she could provide them with green cards in exchange for a fee, charging between $8,500 and $10,500 per person. However, instead of providing the promised documents to these individuals, Ms. Ferguson allegedly kept the money, which amounted to more than $30,000 from at least six victims.

The indictment also charges that the defendant encouraged many of the victims to refrain from renewing their student visas, leaving many without adequate documentation once their visas later expired.

ANNOUNCEMENT OF THE INDICTMENT

U.S. Citizenship and Immigration Services’ Fraud Detection and National Security Directorate in the New York Office played a key role in the indictment.

RELATED USCIS RELEASE

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8. ABIL Global: Hong Kong

Hong Kong has suspended the Capital Investment Entrant Scheme; other developments have been announced.

The Hong Kong Immigration Department (HKID), under the leadership of the Chief Executive, actively reviews immigration policy to better suit the ever-evolving economic development of the Hong Kong Special Administrative Region. One of the most significant policy changes in 2015 is the suspension of the Capital Investment Entrant Scheme (CIES) effective January 15, 2015. The CIES has been a popular vehicle for residence in Hong Kong since its launch in October 2003 with the objective of facilitating the entry of investors willing to make a substantial passive investment without having to play an active role in a business.

At the end of 2014, 41,802 applications were received and 25,504 applicants have made the requisite investments and were granted formal approval to reside in Hong Kong. Additionally, 2,493 applicants were granted approval-in-principle to enter Hong Kong to make the requisite investments.

In a recent press release, the HKID made clear that when the CIES was first implemented, Hong Kong’s economy was in recession and new capital was required to stimulate economic growth. However, attracting capital investment entrants is no longer a priority for the Hong Kong government in view of the latest economic situation in Hong Kong, and the focus is now on attracting and retaining talent, professionals, and innovative entrepreneurs to contribute to Hong Kong’s economy.

The HKID has announced that it will introduce a series of measures in the second quarter of 2015, including a pilot “Admission Scheme for the Second Generation of Chinese Hong Kong Permanent Residents” (ASSG), to attract second-generation Chinese Hong Kong permanent residents from overseas to return to Hong Kong. In this scheme, the applicants are not required to have an offer of employment in Hong Kong upon application and will be granted an initial stay of one year without other conditions. The applicants may then apply for extensions of stay if they have secured offers of employment at a level common for degree holders and with a remuneration package at market level.

Other measures include relaxing the duration-of-stay pattern under various visa schemes, including the General Employment Policy (GEP), the Admission Scheme for Mainland Talent and Professionals (ASMTP), and the Quality Migrant Admission Scheme (QMAS). Entrants admitted under the GEP, the ASMTP, and the QMAS under the General Point Test (GPT), will be relaxed from the current initial stay of one year to two years, and the extension pattern will be changed from the current “two-two-three” year pattern to the “three-three” year pattern.

Additionally, top-tier entrants under these immigration schemes, subject to fulfilling specified criteria, which include having worked or resided in Hong Kong under the respective schemes for at least two years, and having an assessable income for salary tax above a certain level in Hong Kong (not less than HK $2 million or approximately US $250,000), may be granted a six-year extension on time limitation only without other conditions of stay upon application for the first extension. Those successful QMAS entrants under the Achievement-Based Point Test (APT) will be granted upon entry eight years of stay on time limitation only without other conditions of stay. The HKID will also enhance the scoring scheme of the GPT to attract more talent with outstanding academic backgrounds and international work experience to work in Hong Kong.

The immigration policy in Hong Kong remains open and flexible to highly skilled people and responsive to the labor needs of businesses, to ensure that Hong Kong remains a unique “world city” while gradually being reintegrated with the mainland.

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9. New Publications and Items of Interest

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 immigration hotspots around the world.

The latest edition adds a chapter on Singapore. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed 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.

The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis Website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available at http://www.abilblog.com/.

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10. ABIL Member/Firm News

Sharon Mehlman presented on the “Re-Verifying the Workforce” panel at the 9^th Annual Federal Bar Association Worksite Enforcement Conference in Chicago on April 28-29, 2015.

David Isaacson, from Cyrus Mehta‘s office, has authored a new blog entry. “A Preliminary Analysis of the Fifth Circuit Oral Argument on the Application for Stay in Texas v. United States“

Stephen Yale-Loehr presented on April 28, 2015, on an introduction to EB-5 at the EB-5 Finance WebCourse sponsored by the Council of Development Finance Agencies. MORE INFORMATION.

Mr. Yale-Loehr was quoted in the South China Morning Post on April 24, 2015, in “Jobs, Investment, Political Asylum: How Fugitive Chinese Officials Enter U.S.” Mr. Yale-Loehr said, “It is hard for someone from China to immigrate to the U.S. legally, because of the long backlog of Chinese applications in most green card categories and the extensive criminal background and security checks the U.S. runs on all green card applicants.”

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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. Reminder: File H-1B Petitions Early! -USCIS said it expects to receive more petitions than the H-1B cap during the first five business days of this year’s program, which began on April 1.

2. USCIS Updates L-1B ‘Specialized Knowledge’ Guidance -The memo provides guidance on how L-1B petitioners may demonstrate that an employee has specialized knowledge.

3. USCIS Provides Guidance on Adjudication of H-1B Petitions for Nursing Occupations -The memorandum assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation.

4. NLRB Updates Procedures on Addressing Immigration Issues During Unfair Labor Practice Proceedings -The National Labor Relations Board’s (NLRB) Office of the General Counsel recently updated its procedures for addressing immigration status issues arising during unfair labor practice (ULP) proceedings.

5. Obama Announces Enforcement Push on April 1, GOP Objects, As Per Usual -President Barack Obama announced on April Fool’s Day that the U.S. borders and ports of entry (POEs) will henceforth be closed to all newcomers, and that this new executive action will be strictly enforced. Republicans objected.

6. ABIL Global: Turkey -There have been recent changes in Assembly, Maintenance and Service visas in Turkey.

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

8. ABIL Member/Firm News -ABIL Member/Firm News

9. Government Agency Links –Government Agency Links

Details:

1. Reminder: File H-1B Petitions Early!

On April 1, 2015, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions subject to the fiscal year (FY) 2016 cap. USCIS said it expects to receive more petitions than the H-1B cap during the first five business days of this year’s program. The Alliance of Business Immigration Lawyers (ABIL) recommends filing during the first five business days in April.

If USCIS receives an excess of petitions during the first five business days, the agency will use a lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed.

Contact your ABIL member for help with H-1B applications.

USCIS ANNOUNCEMENT

USCIS has released an optional checklist for I-129 H-1B filings.

USCIS encourages H-1B applicants to subscribe to the H-1B Cap Season email updates.

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2. USCIS Updates L-1B ‘Specialized Knowledge’ Guidance

U.S. Citizenship and Immigration Services (USCIS) has issued interim policy guidance on L-1B “specialized knowledge” adjudications that supersedes and rescinds certain prior L-1B memoranda. USCIS said it is issuing this memorandum now for public review and feedback. . USCIS will finalize the guidance effective August 31, 2015. The memo provides guidance on how L-1B petitioners may demonstrate that an employee has specialized knowledge. In the case of off-site employment, it also clarifies how to comply with the requirements of the L-1 Visa (Intracompany Transferee) Reform Act of 2004.

Among other things, the memo notes that a beneficiary must possess either special or advanced knowledge, or both. Determining whether a beneficiary has “special knowledge” requires review of the beneficiary’s knowledge of how the company manufactures, produces, or develops its products, services, research, equipment, techniques, management, or other interests. Determinations concerning “advanced knowledge,” on the other hand, require review of the beneficiary’s knowledge of the specific employing company’s processes and procedures, the memo states. While the beneficiary may have general knowledge of processes and procedures common to the industry, USCIS’s focus is primarily on the processes and procedures used specifically by the beneficiary’s employer. With respect to either special or advanced knowledge, the petitioner ordinarily must demonstrate that the beneficiary’s knowledge is not commonly held throughout the particular industry or within the petitioning employer. As discussed in detail in the memo, however, such knowledge need not be proprietary in nature or narrowly held within the employer’s organization.

The memo notes the following non-exhaustive list of factors USCIS may consider when determining whether a beneficiary’s knowledge is specialized:

• The beneficiary is qualified to contribute to the U.S. operation’s knowledge of foreign operating conditions as a result of knowledge not generally found in the industry or the petitioning organization’s U.S. operations.
• The beneficiary possesses knowledge that is particularly beneficial to the employer’s competitiveness in the marketplace.
• The beneficiary has been employed abroad in a capacity involving assignments that have significantly enhanced the employer’s productivity, competitiveness, image, or financial position.
• The beneficiary’s claimed specialized knowledge normally can be gained only through prior experience with that employer.
• The beneficiary possesses knowledge of a product or process that cannot be easily transferred or taught to another individual without significant economic cost or inconvenience (because, for example, such knowledge may require substantial training, work experience, or education).
• The beneficiary has knowledge of a process or a product that either is sophisticated or complex, or of a highly technical nature, although not necessarily unique to the firm.

The memo notes that specialized knowledge cannot be easily imparted to other individuals.

Commentary. The Alliance of Business Immigration Lawyers notes that some language on page 14 of the memo could still snare L-1Bs working at third-party clients, and this will continue to plague Indian-heritage IT companies.

Workers at third-party sites must be implementing the specialized knowledge of the petitioner’s unique products or services. Specialized knowledge derived from customized products or services rendered to the client may complement but cannot substitute for specialized knowledge of the petitioner’s products, services, or methodologies. Sometimes the specialized knowledge is intertwined. For example, the petitioner customized the product or application for the client, and the L-1B is being sent to the United States to upgrade it. Even though the product or application was rendered to the client, the beneficiary possesses specialized knowledge of the product that was customized for the client. This fact pattern could potentially cause problems.

The memo, which includes details on types of evidence to present and information on off-site employment. Comments are due to USCIS by May 8.

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3. USCIS Provides Guidance on Adjudication of H-1B Petitions for Nursing Occupations

U.S. Citizenship and Immigration Services (USCIS) recently released guidance on the adjudication of H-1B petitions for nursing position. The memorandum assists USCIS officers in determining whether a nursing position meets the definition of a specialty occupation. The memo supersedes any previous guidance on the subject.

The memo notes that the private sector is increasingly showing a preference for more highly educated nurses. Registered nurses’ (RN) duties and titles often depend on where they work and the patients with whom they work. Nursing work can focus on specific areas, such as addiction, cardiovascular, critical care, emergency room, genetics, neonatology, nephrology, oncology, pediatric, operating room, and rehabilitation. The memo states that depending on the facts of the case, some of these RN positions may qualify as specialty occupations.

An advanced practice registered nurse (APRN) defines a level of nursing practice that uses extended and expanded skills, experience, and knowledge in assessment, planning, implementation, diagnosis, and evaluation of the care required. Positions that require certified APRNs “will generally be specialty occupations due to the advanced level of education and training required for certification.” Having a degree is not by itself sufficient to qualify a position as an H-1B, the memo notes. The burden is on the petitioner to establish eligibility, but the memo provided a non-exhaustive list of APRN occupations that may satisfy the requirements for a specialty occupation, including Certified Nurse-Midwife, Certified Clinical Nurse Specialist, Certified Nurse Practitioner, and Certified Registered Nurse Anesthetist.

Evidence submitted by a petitioner may include the nature of the petitioner’s business; a description of industry practices; a detailed description of the duties to be performed within the petitioner’s business operations; advanced certification requirements; American Nurses Credentialing Center Magnet Recognized status (explained in the memo); clinical experience requirements; training in the specialty requirements; and wage rate relative to others within the occupation.

MEMO, which includes additional details

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4. NLRB Updates Procedures on Addressing Immigration Issues During Unfair Labor Practice Proceedings

The National Labor Relations Board’s (NLRB) Office of the General Counsel recently updated its procedures for addressing immigration status issues arising during unfair labor practice (ULP) proceedings. In a memorandum released February 27, 2015, to the field, Richard F. Griffin, Jr., NLRB General Counsel, noted that although the National Labor Relations Act (NLRA) protects all covered employees regardless of immigration status, related issues may affect remedies and present obstacles to enforcing the NLRA.

The new memo provides updated procedures that apply when immigration status issues are raised during NLRB investigations and proceedings. The new procedures require that regions immediately contact the assigned representative(s) in the Division of Operations-Management as soon as they become aware that immigration status issues may affect the ability to remedy or litigate a potential ULP violation. Operations-Management will: (1) provide technical assistance; (2) determine whether interagency engagement could assist in effectuating the NLRA; (3) discuss with the region and/or ask the region to submit to advice on whether it may be appropriate to seek certain additional remedies; and (4) coordinate the agency’s response to these issues.

The memo states that in cases where immigration status issues may affect the NLRB’s ability to remedy or litigate a potential ULP violation, Operations-Management will work with the region to determine whether:

• potential discriminatee(s) and/or witness(es) could be eligible for a U or T visa, or for deferred action, and whether the NLRB should certify and/or facilitate this process;
• it is appropriate to refer the case to the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices pursuant to the NLRB-OSC’s Memorandum of Understanding;
• it is appropriate to engage with the Department of Homeland Security regarding their enforcement operations.

In meritorious cases, Operations-Management and, where appropriate, the Division of Advice will consider whether additional remedies should be sought to address potential limitations on back pay and reinstatement that may arise. The memo states that in this regard, the region should also explore and bring to the attention of Operations-Management any alternative remedies the region seeks and/or that a charging party advances as necessary or appropriate.

MEMO (scroll down to GC 15-03, “Updated Procedures in Addressing Immigration Status Issues That Arise During ULP Proceedings,” February 27, 2015).

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5. Obama Announces Enforcement Push on April 1, GOP Objects, As Per Usual

President Barack Obama announced on April 1, 2015, that the U.S. borders and ports of entry (POEs) will henceforth be closed to all newcomers, and that this new executive action will be strictly enforced. He explained that this was to enhance enforcement and counterterrorism efforts, to keep the country safe from the “wrong element,” and to protect American jobs. He added that he finally “gets” that it’s simply the manly man thing to do and he wants to appear more forceful. “I get it,” he said. “We can’t be weak, just letting people in willy-nilly.”

Among other things, in an emergency budget allocation, Obama reallocated $852 billion to erect a very large (huge, actually) fence along the southern border and send border patrol agents with scowls on their faces and big, impressive weapons still smoking from other operations to defend the border 24-7, taking potshots at anything that moves. “My final gift to America,” he said. He sat back and waited for Republicans to congratulate him. “Now I’ve got ’em. They can’t possibly object to this!” he reportedly whispered gleefully to Vice President Joe Biden while the mic was still on.

Immediately after the press conference announcing the new executive actions, however, Republicans in Congress objected, stating that this was just a gimmick and we should be more welcoming. “President Obama seems to have forgotten that this is a nation of immigrants,” new presidential candidate Sen. Ted Cruz announced. “I myself was born to a Cuban father. Mitt Romney was born in Mexico, and John McCain was born in Panama. President Obama and the Democrats need to get their heads out of the heartland. He needs to stop being a cowboy, and a weak tyrant, or something. He just doesn’t get it. Imagine a country where people can flourish, regardless of where they come from.” President Obama pleaded, “But I thought enforcement is what you wanted all along. That’s what you all kept saying. ‘Enforcement this, enforcement that,’ right?? I’m just trying to meet you halfway. Okay, 200 percent of the way. Whatever.” Retorted House Speaker John Boehner, “That was yesterday. This is today, and this means war!”

Republicans shortly afterward filed a lawsuit challenging the new actions, stating that President Obama is simply too American and just doesn’t get it. Radio personality Rush Limbaugh huffed and puffed and said we should blow that fence down. Donald Trump, remarking that it had suddenly gotten very windy across America, held onto his toupee. The WTOP Radio meteorologist issued a toupee and comb-over alert. Sarah Palin noted that Obama has gone all “forcy-forcy. Actually, I kinda like it! Got it? You betcha,” she said.

Happy April Fool’s Day!

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6. ABIL Global: Turkey

There have been recent changes in Assembly, Maintenance and Service visas in Turkey.

Turkey amended its work permit regulations in January 2015 with respect to Assembly, Maintenance and Service (AMS) visas. An AMS visa is a short-term (90-day) technical work visa for foreign employees, under certain conditions, to engage in assembly, maintenance, service, or technical training work for the benefit of a Turkish company without the need for a work permit. This visa is a very practical category for many companies in the technology, construction, and energy sectors because it generally has a very low documentary burden and is adjudicated solely at the consular post, most often within a few days.

Historically, the problem with this visa category was twofold: (1) the 90-day period was calculated consecutively within a year and (2) the visas were generally issued as single entry. Therefore, unless an assignee remained in Turkey for the entire 90-day period uninterrupted, the full 90 days per year could not be used.

On January 22, 2015, the work permit regulations were changed to now state that AMS visa holders can remain for up to three months in total within a year. And the regulations now allow foreigners with an AMS visa to enter Turkey on multiple occasions provided that they do not remain in Turkey more than three months in total within a year.

The change in the wording of the regulation appears to convey that the 90-day period will now be calculated cumulatively over the period of a year, not consecutively. It also states that these visa holders should be granted multiple entries, which is welcome news regardless of the calculation of the 90 days, particularly since the vast majority of consular posts issue single-entry AMS visas.

In the meantime, it is best practice to provide a copy of the legal changes to the consular post when applying for an AMS visa in order to insist that consular posts follow this regulatory change and grant one-year multiple-entry AMS visas. However, the calculation of the 90-day period (cumulative vs. consecutive), is in the hands of the passport officers at entry points to confer later entries for AMS visa holders whose period is beyond 90 days consecutively (yet have not been present in Turkey for 90 days cumulatively). AMS visa holders should anticipate that some consular officers and passport officers will not have full awareness or knowledge of this legal change for some time.

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7. New Publications and Items of Interest

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 immigration hotspots around the world.

The latest edition adds a chapter on Singapore. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed 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.

The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis Website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available at http://www.abilblog.com/.

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8. ABIL Member/Firm News

Various ABIL members were named to Human Resource Executive‘s “Most Powerful Employment Attorneys” list in the immigration field for 2015. The list will be featured in the June 16, 2015, issue. The magazine states that only those who earn “glowing marks from clients, peers, colleagues and judges are awarded the distinction.”

Mark Ivener has co-authored an e-book, EB-5 Visas: International Investors & U.S. Taxes, available from Amazon.

Klasko Immigration Law Partners will hold its 11^th annual Spring Seminar, “Immigration 2015: Hope Springs Eternal,” on Wednesday, April 22, 2015, from 9:30 am to 2 pm. For more information or to register.

Charles Kuck is the attorney for 39 plaintiffs in a case seeking in-state tuition for young immigrants in Georgia without legal status. The Georgia Court of Appeals rejected an appeal on March 19, 2015. Mr. Kuck said he would appeal to the Georgia Supreme Court. In a statement, he said, “The day that residents of Georgia cannot seek redress in court for the state’s action against them is a sad day for all Georgians. We will appeal this decision and continue our fight for tuition equity on all available fronts.” The article was published in the Atlanta Journal-Constitution.

Mr. Kuck was quoted in an article in Quartz on March 25, 2015, noting that U.S. Immigration and Customs Enforcement has raised bond prices and instituted no-bond policies at some detention centers. “What we’re missing here is the little bit of mercy that always must come with justice to make the laws just.” The article, “U.S. Promised To Deport Felons, Not Families—But That’s Not What’s Happening.”

Vincent Lau has several upcoming speaking engagements:

• May 15-16, 2015, Federal Bar Association’s 2015 Immigration Law Conference, Panel 1: “Hot Topics in PERM”; Panel 2: “Advanced Employment-Based Permanent Residency”
• June 17-19, 2015, 2015 AILA Annual Conference, “Fundamentals of PERM”

Robert F. Loughran presented on the effects of President Obama’s executive actions on Forms I-9 and E-Verify, at the Foster Spring 2015 Immigration Update Seminars in San Antonio and Austin, Texas. His panel also discussed details of the Deferred Action for Parental Accountability (DAPA) program and the newly expanded Deferred Action for Childhood Arrivals (DACA) program, as well as Former Texas Governor Rick Perry’s RP80 executive order mandating E-Verify for certain state agencies and their contractors.

Mr. Loughran provided expert testimony before the Texas Senate against potential anti-immigration bills in the current legislative session. Mr. Loughran’s appearance came at the request of the Immigration Task Force of the Greater Houston Partnership.

Mr. Loughran appeared on Austin’s KEYE ABC affiliate to speak about the impact of “Sanctuary City” legislation.

Mr. Loughran presented Executive Actions on Immigration on February 4, 2015, as part of the Greater Houston Partnership’s Continuing Education Series. For more information.

Cyrus Mehta has authored or co-authored several new blog entries. “America Cannot Be Open for Business Through an H-1B Visa Lottery” “The Reason for L-1B Denial Rates Being Higher for Indian Nationals”

Mr. Mehta spoke at the following events:

• Panelist, “Ethical and Practical Issues in Representing Children in Immigration Cases,” American Immigration Lawyers Association (AILA) Philadelphia Chapter’s 2015 CLE Conference, Philadelphia, Pennsylvania, March 27, 2015
• Program Chair, “Basic Immigration Law 2015,” Practising Law Institute, New York City and live webcast, March 12, 2015
• Panelist, “Alternatives to H-1B,” 2015 Midwest Regional Conference, AILA, Chicago, Illinois, March 9, 2015

Cora-Ann V. Pestaina, an associate attorney in Mr. Mehta’s office, has authored a new blog entry. “BALCA Says Economic Benefits Should Be Listed in PERM Recruitment”

Angelo Paparelli will speak on “What’s New in EB-5 Practice” at the 2015 AILA Rome District Chapter Spring Conference in Rome, Italy, on April 29, 2015. For more information or to register.

Mr. Paparelli was quoted in a Law360.com article, “DHS Deputy Accused of Playing Favorites in EB-5 Program,” published on March 24, 2015. In reference to the Office of Inspector General’s investigation into allegations that Deputy Secretary of Homeland Security Alejandro Mayorkas had exerted improper influence on EB-5 application processing, Mr. Paparelli said he believed that Mr. Mayorkas’ character was being “unfairly impugned” and that Mr. Mayorkas is of “the highest integrity.” Mr. Paparelli noted that during Mr. Mayorkas’ tenure at USCIS, he made “significant strides in many, many different program areas.” Mr. Paparelli said that “grousers” are “trying to make something where I believe nothing exists,” and that there were political motivations at play. The article is available by registering HERE.

Mr. Paparelli was quoted in “Immigration Executive Actions An Ethical Minefield for Attys,” published on March 16, 2015, in Law360. He noted that determining whether a consultation before enactment of an executive action is advisable includes a judgment about the individual client’s capabilities and needs. “If I’m dealing with a high-net-worth individual that can afford to spend a lot of time gazing into the immigration crystal ball, I don’t think there should be limitations. Then again, if you’re spending someone’s entire life savings and now they can’t afford the benefit, you’re going to be looked at with a jaundiced eye.” He also noted the potential Catch-22 if an attorney represents both an employer and an individual when there may be conflicts. “I endeavor to represent only one party, because the potential for harm if a lawyer is caught in the crossfire of a major dispute is great.” In the employment context, Mr. Paparelli says he lets the individual worker know that he only represents the company, “which has agreed to pay my fees and provide immigration support as a fringe benefit, but not a legal service.”

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9. 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. Court Blocks Expanded DACA, DAPA; Obama Administration Appeals – The blocked programs include an expansion of Deferred Action for Childhood Arrivals, which had been set to start in February, and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which was scheduled to begin in May.

2. DHS Extends Eligibility for Work Authorization To Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking LPR Status – Starting May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants may apply for work authorization. Over 100,000 spouses may benefit from this change.

3. Federal Jury Awards $14 Million To Five Trafficked Indian Guest Workers – In the first of a series of cases involving several hundred clients, a federal jury awarded five Indian guest workers $14 million in compensatory and punitive damages in a labor trafficking scheme.

4. Labor Dept. Publishes 2015 Allowable Charges for Agricultural Workers’ Meals and Travel Reimbursements – The notice discusses requirements that the employer assume responsibility for certain costs associated with H-2A workers’ meals, travel, and lodging.

5. ABIL Pro Bono: Cyrus Mehta – ABIL Pro Bono: Cyrus Mehta

6. ABIL Global: Belgium – ABIL Global: Belgium

7. New Publications and Items of Interest – New Publications and Items of Interest

8. ABIL Member/Firm News – ABIL Member/Firm News

9. Government Agency Links – Government Agency Links

Details:

1. Court Blocks Expanded DACA, DAPA; Obama Administration Appeals

On February 23, 2015, the Department of Justice (DOJ) filed paperwork to seek a stay of a federal district court decision to block temporarily some of President Obama’s latest executive actions on immigration. That decision was in response to a lawsuit by 26 states. The blocked programs include an expansion of Deferred Action for Childhood Arrivals (DACA), which had been set to start in February, and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which was scheduled to begin in May.

U.S. District Judge Andrew Hanen of the Federal District Court for the Southern District of Texas, in Brownsville, ruled in favor of blocking the programs on February 16. Judge Hanen said the programs would impose major burdens on states and that the Obama administration exceeded its authority in changing federal rules.

The temporary injunction does not block the existing DACA program, only the expansion announced in November 2014. Individuals may continue to request initial grants or renewals of DACA under the guidelines established in 2012, Secretary of Homeland Security Jeh Johnson stated. He also noted that other actions announced in November 2014 were not affected by the ruling, including prioritizing enforcement efforts.

Secretary Johnson issued a statement on February 17 saying that he “strongly disagree[d]” with the District Court’s temporary injunction blocking the programs, but that his agency would not begin accepting requests for expanded DACA on February 18 as originally planned, and would suspend plans to accept DAPA requests until further notice. ” The Department of Justice, legal scholars, immigration experts and even other courts have said that our actions are well within our legal authority. Our actions will also benefit the economy and promote law enforcement. We fully expect to ultimately prevail in the courts, and we will be prepared to implement DAPA and expanded DACA once we do,” he said.

Meanwhile, President Obama fielded immigration questions at a “town hall”-style meeting on February 25, 2015, conducted by MSNBC and Telemundo. Noting that the Senate had passed comprehensive immigration reform in 2013 but that House Republicans refused to bring the bill to the floor for a vote, he said he had decided to use his executive authority to “try to make sure that we are prioritizing our immigration system a lot smarter than we’ve been doing.” He stressed the importance of voting to change related laws. He also noted that he would veto legislation intended to eliminate his executive actions.

PRELIMINARY INJUNCTION

OBAMA ADMINISTRATION’S STATEMENT ON TEXAS V. UNITED STATES

INFORMATION ON DAPA

INFORMATION ON RECENT EXECUTIVE ACTIONS ON IMMIGRATION

FEBRUARY 11 FAQ

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2. DHS Extends Eligibility for Work Authorization To Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking LPR Status

U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced on February 24, 2015, that effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.

Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

• Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

USCIS said it expects this change to “reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society.” As such, USCIS noted, the change “should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them.” The agency noted that the change “should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation.” The rule also “will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers,” USCIS said.

USCIS estimates that the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, “and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date,” USCIS said.

NOTICE

FINAL RULE

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3. Federal Jury Awards $14 Million To Five Trafficked Indian Guest Workers

In the first of a series of cases spearheaded by the Southern Poverty Law Center (SPLC) involving several hundred clients, a federal jury awarded five Indian guest workers $14 million in compensatory and punitive damages in a labor trafficking scheme. The cases were divided into five workers per case after a judge did not grant class action status. The SPLC is coordinating a legal collaboration bringing together almost a dozen of law firms and civil rights organizations to represent the workers on a pro bono basis, in what the organization is calling “one of the largest labor trafficking cases in U.S. history.”

The workers had each paid recruiters and a lawyer for Signal International, a Gulf Coast marine services company, $10,000 to $20,000 or more to come to the United States on H-2B temporary worker visas after they were promised good jobs, green cards, and eventual permanent residence for themselves and their families. When the workers arrived at Signal shipyards in Pascagoula, Mississippi, they did not receive what they were promised and were forced to pay $1,050 per month to live in isolated, guarded labor camps. The workers, who were born in India, could not have obtained the promised green cards under the backlogged employment-based third preference within the time frame of the H-2B visas. The green card strategy was also incompatible with the temporary H-2B visa. As many as 24 men shared a space the size of a double-wide trailer, SPLC reported. Only Signal’s Indian workers were required to live in the company housing. When some tried to find their own housing, they were told they would still be charged the housing fee, to be deducted from their pay. Company employees searched the worker’s belongings and threatened those who complained with deportation. Many of the men in this series of cases had sold property or gone deeply into debt to come to the United States, and their families were at risk as a result.

SPLC’s co-counsel in this case were Crowell & Moring, LLP; the American Civil Liberties Union; the Asian American Legal Defense and Education Fund; Sahn Ward Coschignano & Baker; and the Louisiana Justice Institute. Alliance of Business Immigration Lawyers (ABIL) member Cyrus Mehta served as an expert witness for the plaintiffs. The immigration group at Fredrikson & Byron, another ABIL member law firm, is contributing its time pro bono to represent other Signal employees in a similar lawsuit.

ADDITIONAL DETAILS OF THE CASE

MORE DETAILS OF THE CASE

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4. Labor Dept. Publishes 2015 Allowable Charges for Agricultural Workers’ Meals and Travel Reimbursements

On February 23, 2015, the Department of Labor (DOL) published allowable charges for H-2A agricultural workers’ meals and travel subsistence reimbursement, including lodging.

DOL provides the methodology for determining the maximum amounts that H-2A agricultural employers may charge their U.S. and foreign workers for providing them with three meals per day during employment. This methodology provides for annual adjustments of the previous year’s maximum allowable charge based upon updated Consumer Price Index (CPI) data. The maximum charge is adjusted by the same percentage as the 12-month percent change in the CPI for all Urban Consumers for Food (CPI-U for Food). The Office of Foreign Labor Certification’s Certifying Officer may also permit an employer to charge workers a higher amount for providing them with three meals a day, if the higher amount is justified and sufficiently documented by the employer.

DOL has determined that the percentage change between December 2013 and December 2014 for the CPI-U for Food was 2.4 percent. Accordingly, the maximum an employer is allowed to charge is $11.86 per day, unless the OFLC Certifying Officer approves a higher charge for a specific employer.

The notice also discusses the requirement that the employer assume responsibility for reasonable costs associated with the worker’s travel, including transportation, food, and, in those instances where it is necessary, lodging.

NOTICE

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5. ABIL Pro Bono: Cyrus Mehta

U.S. Citizenship and Immigration Services (USCIS)’ Administrative Appeals Office (AAO) recently sustained an appeal of an I-601 hardship waiver denial. The applicant, a native and citizen of Côte d’Ivoire, was found to be inadmissible to the United States for procuring admission through fraud or misrepresentation. She is the beneficiary of an approved green card petition based on her marriage to a U.S. citizen and sought a waiver of inadmissibility to remain in the United States with her spouse and children. The District Director found that the applicant failed to establish that her qualifying relative would experience extreme hardship as a consequence of her inadmissibility and denied the Application for Waiver of Grounds of Inadmissibility (Form I-601).

On appeal, the applicant contended that USCIS erred in concluding that she had not proven extreme hardship. Among other things, she noted that she had fled Côte d’Ivoire due to civil war and ethnic conflict and used an assumed name with a genuine passport to flee and obtain a B-1 visa to enter the United States. She also submitted medical documentation certifying that she was subjected to female genital mutilation (FGM).

The applicant and her spouse expressed fears that if she were to be required to return to Cote d’Ivoire, she could suffer retribution because of her ethnicity and because she opposes FGM, and her daughter could be forced to undergo FGM also. A psychological evaluation observed that the spouse was in “the severe range of depression and anxiety.” The AAP found that the record established that the applicant’s spouse would suffer extreme hardship as a consequence of being separated from the applicant and having sole care of the children if they remained in the United States, and due to his length of residence in the United States. The spouse had received asylum in 2000 after having escaped from Côte d’Ivoire, making his possible return impractical and possibly dangerous. Although the applicant’s immigration violations were serious, the AAO found that the record established that the positive factors outweighed the negative factors and a favorable exercise of discretion was warranted.

Alliance of Business Immigration Lawyers member Cyrus Mehta, counsel for the applicant, noted: “What is interesting about this case is that many of the compelling hardship arguments that won the day were derived from the applicant’s asylum claim based on FGM, which she did not pursue after removal hearings were terminated based on her marriage to a U.S. citizen spouse.” Mr. Mehta handled this matter on a pro bono basis.

DECISION

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6. ABIL Global: Belgium

Several developments have been announced.

2015 salary thresholds and requirements. Belgium has established 2015 salary thresholds for fast-track work permits B and the European Union (EU) Blue Card. One of the requirements for some Belgian fast-track work permits B and for the Blue Card is a salary threshold: the annual gross remuneration must exceed an amount that is adjusted on a yearly basis. Work permits are processed by the Belgian Regions: Flanders, Brussels, and Wallonia.

The new salary thresholds effective January 1, 2015, are:

• for highly skilled work permits: €39,802 in all 3 Regions (€39,422 for 2014);
• for executive level work permits: €66,406 in Flanders and €66,405 in Brussels and Wallonia (€65,771 for 2014);
• for Blue Cards: €51,466 in all three Regions (€50,974 for 2014).

Wallonia and Brussels have adopted legislation confirming that the salary must be paid in exchange for labor, and that the salary amount must be certain/fixed before the start of the employment in Belgium. Flanders applies the same rule.

The ministries issue a fast-track work permit B for highly skilled labor only if it is clear that the employee’s salary will exceed the threshold. The ministries take into account only amounts that will definitely be paid. A discretionary bonus cannot be considered when processing a work permit application.

Mandatory fee for some residence requests. The Belgian federal government has introduced a mandatory “contribution to the administrative costs” (mostly referred to in the press as a “foreigners’ tax”) with regard to some requests for residence authorization by foreigners. The government said this measure is in response to the continuing increase in the number of such applications and the resulting workload.

The federal government agreed to this measure on November 27, 2014. A government bill, also including several other measures, was filed in the Belgian Parliament on November 28, 2014, and the law was approved on December 19, 2014. Before the fee can become effective, it must be implemented by means of a Royal Decree. The fee will probably amount to €215 for work permit holders and €160 for family members.

Most foreigners will need to pay the fixed amount to file an application for residence authorization, either in Belgium or abroad through a Belgian embassy or consulate. If the fee is not paid, the application will be considered inadmissible. The fee will be paid by, among others, work permit holders and their family members; students; some researchers; and Blue Card applicants.

Members of the European Economic Area, Swiss citizens and their family members, asylum seekers and recognized refugees, victims of human trafficking, and unaccompanied minors will be exempt from the new fee.

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7. New Publications and Items of Interest

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 co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

The latest edition adds a chapter on Singapore. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed to be used by:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOG

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8. ABIL Member/Firm News

Mark Ivener has co-authored an e-book, EB-5 Visas: International Investors & U.S. Taxes, available from Amazon.

H. Ronald Klasko was quoted in Voice of America News in a report on the EB-5 immigrant investor program. Mr. Klasko said the EB-5 program was less likely to bring terrorists or criminals into the United States than any other immigration program. “There are about seven or eight different levels of review within [U.S.] Citizenship and Immigration Services, within the Department of Homeland Security and within the U.S. Department of State that EB-5 investors have to go through,” he noted.

Charles Kuck was quoted or mentioned in recent articles on the federal court order temporarily blocking some of President Obama’s executive actions. The articles are available at Global Atlanta, Atlanta Journal Constitution and Epoch Times.

Mr. Kuck was included in an ad that aired on the Daytona 500 jumbotron. In the ad, he says, “People come here for opportunity. But if we continue to have immigration laws that take that opportunity away from people rather than giving it to them, we’re no longer going to attract those people that want to grow a business, that want to grow their family, that want to have a better life here in the United States.”

Vincent Lau has several upcoming speaking engagements:

• March 5, 2015, Kendall Square Association: “Top Unanswered H-1B Questions”
• March 6, 2015, 12th Annual AILA New England Conference: “PERM: How to Practice When DOL Keeps Changing the Rules”
• May 15-16, 2015, Federal Bar Association’s 2015 Immigration Law Conference, Panel 1: “Hot Topics in PERM”; Panel 2: “Advanced Employment-Based Permanent Residency”
• June 17-19, 2015, 2015 AILA Annual Conference, “Fundamentals of PERM”

Cyrus Mehta has had several recent speaking engagements:

• Speaker, “Immigration Executive Action and LGBT Americans/South Asians—What’s Good, What’s Left Out, And Our Next Steps,” National Queer Asian Pacific Islander Alliance, New York City, February 12, 2015.
• Plenary Session—”Overview of Recent Developments in Immigration Law” and Discussion Leader, “Life With No H-1B Visa,” 36th Annual Immigration Law Update South Beach, American Immigration Lawyers Association (AILA) South Florida Chapter, February 5 and 6, 2015.
• Speaker, “Discussion of Ethics and President Obama’s Immigration Accountability Executive Action,” Ethics 101 CLE, AILA-New York Chapter, January 21, 2015.

A new blog entry by Cora-Ann V. Pestaina was added to Cyrus Mehta‘s blog. “The AAO on H-1B Visa Credential Evaluations and the ‘Three-for-One’ Rule”

David Isaacson, an associate of Cyrus Mehta, recently published a new blog entry, “Ignoring the Elephant in the Room: Initial Reaction to Judge Hanen’s Decision Enjoining DAPA and Expanded DACA”

Angelo Paparelli will speak at NES Financial’s EB-5 Innovation Summit in Los Angeles, California, on March 10, 2015. FOR MORE INFORMATION OR TO REGISTER

Mr. Paparelli also will speak on “What’s New in EB-5 Practice” at the 2015 AILA Rome District Chapter Spring Conference in Rome, Italy, on April 29, 2015. FOR MORE INFORMATION OR TO REGISTER

Mr. Paparelli spoke on “No One Said Green Fees Were Cheap—EB-5 Challenges and Recent Trends” at the 2015 AILA Southern California Winter CLEon February 27, 2015.

Stephen Yale-Loehr was quoted in the Wall Street Journal in an article about a federal court blocking the United States from detaining some asylum seekers.

Mr. Yale-Loehr also was quoted in articles and interviewed about the recent district court ruling temporarily blocking some of the Obama administration’s recent executive actions on immigration:

Print articles:

• USA Today
• CNN
• Univision (in Spanish)
• U.S. News and World Report
• Houston Chronicle (subscription required)
• The Guardian
• National Law Journal
• Boston Herald
• Law360 (subscription required)

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9. 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. DHS Considers ‘Known Employer’ Program To Aid Business Travel – DHS expects to launch a pilot by late 2015 to test the program.

2. HHS Updates Poverty Guidelines – Among other things, the poverty guidelines are used in determining minimum income requirements for Form I-864, Affidavit of Support, and Form I-912, Fee Waiver Request.

3. USCIS Issues Reminder for Requesting DACA – Those requesting either initial or renewal Deferred Action for Childhood Arrivals (DACA) must submit an application for employment authorization and required fees.

4. ABIL Global: Mexico – The new “Temporary Migration Regularization Program” took effect January 13.

5. New Publications and Items of Interest – New Publications and Items of Interest

6. Member News – Member News

7. Government Agency Links – Government Agency Links

Details:

1. DHS Considers ‘Known Employer’ Program To Aid Business Travel

The Department of Homeland Security (DHS) is considering a “Known Employer” pilot program to streamline adjudication of certain types of employment-based immigration benefit requests filed by eligible U.S. employers.

DHS expects to launch the pilot by late 2015 to test the program, which is designed to make adjudications more efficient and less costly, and reduce paperwork and delays for both the department and U.S. employers who seek to employ foreign workers.

U.S. Citizenship and Immigration Services, U.S. Customs and Border Protection, and U.S. Immigration and Customs Enforcement will jointly implement the pilot program. A goal is to expedite or otherwise facilitate legitimate cross-border business travel along the northern border ports of entry. “Doing so is a binational commitment under the North American Free Trade Agreement as well as the U.S.-Canada Beyond the Border initiative,” DHS explained.

In particular, the U.S. and Canadian governments intend to “explore the feasibility of incorporating a trusted employer concept in the processing of business travelers between Canada and the United States.”

Additional information about the Known Employer program will be provided in the coming months.

BACKGROUND AND UPDATES

DHS seeks input on the Beyond the Border initiative, which can be emailed to [email protected] or mailed to Beyond the Border Coordinator, U.S. Department of Homeland Security, Mailstop 0455, Washington, DC 20016.

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2. HHS Updates Poverty Guidelines

The Department of Health and Human Services (HHS) has updated the poverty guidelines effective January 22, 2015. Among other things, the poverty guidelines are used in determining minimum income requirements for Form I-864, Affidavit of Support, and Form I-912, Fee Waiver Request.

The latest guidelines were published in the FEDERAL REGISTER.

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3. USCIS Issues Reminder for Requesting DACA

U.S. Citizenship and Immigration Services (USCIS) issued the following reminder on January 20, 2015:

If you request either initial or renewal Deferred Action for Childhood Arrivals (DACA), you must submit Form I-765, Application for Employment Authorization and required fees. USCIS will reject your request if you fail to submit Form I-765, the required filing fee, Form I-765 Worksheet, and Form I-821D, Consideration of Deferred Action for Childhood Arrivals. For complete instructions on requesting DACA, go to the Consideration of Deferred Action for Childhood Arrivals (DACA) page.

For DACA renewals, USCIS strongly encourages you to submit your renewal request between 150 days and 120 days before the expiration date located on your current Form I-797 DACA approval notice and Employment Authorization Document. Filing during this window will minimize the possibility that your current period of DACA will expire before you receive a decision on your renewal request.

USCIS’ current goal is to process DACA renewal requests within 120 days. However, you may submit an inquiry about the status of your renewal request after it has been pending more than 105 days. To submit an inquiry, please visit egov.uscis.gov/e-request or call the National Customer Service Center at 1-800-375-5283 (TDD for the hearing impaired: 1-800-767-1833).

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4. ABIL Global: Mexico

The new “Temporary Migration Regularization Program” took effect January 13.

On January 12, 2015, the Mexican government published an announcement in the Federal Official Gazette about the “Temporary Migration Regularization Program,” which became effective the day after and will expire on December 18, 2015.

The program incorporates requirements and procedures temporarily applicable to foreigners who entered Mexico legally before November 9, 2012, and who, as of January 13, 2015, have been living in Mexico under an irregular migration status.

The program establishes that if the migration authority resolves the migration filing as approved (taking into account that the interested individual filed a migration regularization application), the authority will grant temporary resident status for four years with the possibility of requesting a work permit with authorization to perform remunerated activities in Mexico.

This program is aligned with various strategies of the Mexican government that promote specific actions to guarantee protection of the human rights of immigrants under unfavorable conditions, such as irregular status, which often represents a risk to their security, access to health services, and development in society.

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5. New Publications and Items of Interest

Sen. Coburn report on DHS. Sen. Tom Coburn has released an oversight report, A Review of the Department of Homeland Security’s Missions and Performance, which finds that the DHS is not successfully executing any of its main missions. For example, the report finds that DHS is not effectively administering or enforcing immigration laws, and 700 miles of the southern border remain unsecured.

SUMMARY AND FULL REPORT

New keyword search function on labor certification FAQs. The Department of Labor’s Office of Foreign Labor Certification (OFLC) has updated the FAQ page of its official website with a new keyword search function, Search FAQs. Users may now search the FAQ page by using a single keyword or exact phrase to identify items in the FAQ database. A Tip Sheet has been developed to assist with use of the Search FAQs tool.

FAQs PAGE AND SEARCH FAQs TIP SHEET

GUIDE

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 co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

The latest edition adds a chapter on Singapore. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed to be used by:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOG

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6. Member News

Laura Devine won the “Entrepreneurial Woman of the Year” award at Citywealth’s Power Women Awards 2015, held on January 22 in London, England. The awards recognize individuals and companies who maximize the potential of women in wealth, champion female leadership, and celebrate diversity. Citywealth said that Ms. Devine “has shown outstanding enterprise in successfully founding, expanding and maintaining a thriving specialist law practice, based in London but global in reach. She has excelled in her chosen field of immigration law, especially for high net worth individuals.This has called not only for high professional ability but also for strong leadership qualities combined with initiative and stamina.” MORE INFORMATION ON THE AWARDS

Klasko Immigration Law Partners, LLP, named one of the United States’ top immigration law firms by U.S. News and World Report, has launched a compliance practice to complement its world-renowned EB-5 visa practice headed by firm chairman H. Ronald Klasko. Mr. Klasko was recently recognized again by EB-5 Investor Magazine as one of the top 25 attorneys in the United States for EB-5 matters.

Robert Loughran spoke on January 29, 2015, at the Society for Human Resource Management (SHRM) Chapter meeting in Lubbock, Texas, on the latest immigration developments affecting employers.

Cyrus Mehta has co-authored a new blog entry. “Squaring the Immigration Circle: New Hope for an Old System”

Stephen Yale-Loehr was quoted in the Epoch Times on January 21, 2015, in an article about the Republican Party’s response to President Obama’s State of the Union Address. Mr. Yale-Loehr noted that “[Sen. Jeff Sessions’ (R-Ala.) opposition to an immigration reform bill] shows the tension within the Republican Party. You’ve got some members who want to be accommodating on immigration because they want to attract the Latino vote for 2016, whereas others are firmly anti-immigrant and want to focus solely on strengthening our borders and deporting as many illegal immigrants as possible.” He also said that “Sessions could make sure [an immigration reform bill] never gets to the floor. More likely he would amend it to make it what he thinks should be the final bill and see if that gets through the Senate.” Mr. Yale-Loehr said that any immigration legislation in the next two years was likely to be in “bite-size packages” and not to resemble the comprehensive Senate bill from 2013.

Mr. Yale-Loehr and Mr. Klasko will speak at the EB-5 Innovation Summit on February 24, 2015, in New York City sponsored by NES Financial. FOR MORE INFORMATION OR TO REGISTER.

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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. President Announces Thaw in Relations With Cuba – The measures President Obama announced included, among other things, initiating discussions to re-establish diplomatic relations with Cuba, and facilitating an expansion of travel.

2. U.S. District Court Dismisses Sheriff’s Challenge to Obama’s Executive Action – The judge shot down the three main arguments the plaintiff made to support his motion for a preliminary injunction.

3. DOL Elaborates on Procedures Under Comite de Apoyo Decision Re H-2B Prevailing Wages – – In response to inquiries, the Department of Labor’s Office of Foreign Labor Certification recently elaborated on the procedures for implementing the decision in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis.

4. USCIS Adds Five Countries To H-2A, H-2B Visa Program Participation – The Czech Republic, Denmark, Madagascar, Portugal, and Sweden were added to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year.

5. DOL Announces 2015 H-2A Adverse Effect Wage Rates – The 2015 AEWRs, broken down by state, range from a low of $10 (Alabama) to a high of $13.59 (Kansas, Nebraska, North Dakota, and South Dakota).

6. ABIL Global: France – New work permit forms are effective January 1, 2015.

7. New Publications and Items of Interest – New Publications and Items of Interest

8. Member News – Member News

9. Government Agency Links – Government Agency Links

Details:

1. President Announces Thaw in Relations With Cuba

On December 17, 2014, President Barack Obama announced a thaw in the United States’ relations with Cuba. He noted that decades of U.S. isolation of Cuba have failed to accomplish any U.S. goals.

The measures President Obama announced included, among other things, initiating discussions to re-establish diplomatic relations with Cuba, and facilitating an expansion of travel under general licenses for the 12 existing categories of travel to Cuba authorized by law, including: (1) family visits; (2) official business of the U.S. government, foreign governments, and certain intergovernmental organizations; (3) journalistic activity; (4) professional research and professional meetings; (5) educational activities; (6) religious activities; (7) public performances, clinics, workshops, athletic and other competitions, and exhibitions; (8) support for the Cuban people; (9) humanitarian projects; (10) activities of private foundations or research or educational institutes; (11) exportation, importation, or transmission of information or information materials; and (12) certain export transactions that may be considered for authorization under existing regulations and guidelines.

Also announced was raising remittance levels from $500 to $2,000 per quarter for most donations to Cuban nationals, and other measures to facilitate trade and commerce.

FACT SHEET

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2. U.S. District Court Dismisses Sheriff’s Challenge to Obama’s Executive Action

On December 23, 2014, Judge Beryl Howell of the U.S. District Court for the District of Columbia denied Maricopa County, Arizona, Sheriff Joseph Arpaio’s motion for a preliminary injunction against the United States and federal officials. Sheriff Arpaio’s suit alleged that certain immigration policies announced by President Barack Obama on November 20, 2014, are unconstitutional, otherwise illegal, and should be stopped from going into effect. The judge granted the U.S. government’s motion to dismiss for lack of subject matter jurisdiction.

Judge Howell noted that the suit “raises important questions regarding the nation’s immigration policies, which affect the lives of millions of individuals and their families. The wisdom and legality of these policies deserve careful and reasoned consideration.” She said that the key question in this case, however, “concerns the appropriate forum for where this national conversation should occur.” She raised the issue of standing, which she noted ensures that courts act as judges rather than policymakers. “The role of the Judiciary is to resolve cases and controversies properly brought by parties with a concrete and particularized injury—not to engage in policymaking better left to the political branches,” she said.

Sheriff Arpaio’s suit challenged, among other things, the Obama administration’s program launched in 2012 known as Deferred Action for Childhood Arrivals (DACA). The suit also challenged President Obama’s recent expansion of DACA and creation of a new program for deferred action for parents of U.S. citizens or lawful permanent residents (DAPA). Judge Howell noted that the executive branch has long used “deferred action” to implement enforcement policies and priorities. ” Under long-existing regulations, undocumented immigrants granted deferred action may apply for authorization to work in the United States,” she added, noting that “[f]or almost twenty years, the use of deferred action programs has been a staple of immigration enforcement.”

COURT’S OPINION

FULL TEXT of similar lawsuit filed by more than 20 states

THE OBAMA ADMINISTRATION’S MEMORANDA and a related White House address announcing the actions

MEMORANDA ON MODERNIZING AND STREAMLINING THE U.S. VISA SYSTEM

MEMORANDA ON ESTABLISHING A WHITE HOUSE TASK FORCE ON NEW AMERICANS

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3. DOL Elaborates on Procedures Under Comite de Apoyo Decision Re H-2B Prevailing Wages

In response to inquiries, the Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) recently elaborated on the procedures for implementing the decision in Comite de Apoyo a los Trabajadores Agricolas et al. v. Solis, No. 14-3557 (3d Cir.). That decision invalidated DOL regulations authorizing employers to use employer-provided wage surveys for prevailing wage determinations for H-2B temporary foreign workers. The DOL stated:

Employers with a pending H-2B prevailing wage request: Employers who have a pending prevailing wage determination request that is based on an employer-provided survey may modify that request to use a Service Contract Act (SCA) or Davis Bacon Act (DBA) wage determination or a wage based on a Collective Bargaining Agreement (CBA). That request will not be treated as a new filing and the request will be processed based on the original filing date. The OFLC reminded employers that the request must specify precisely which SCA or DBA wage determination is being used or provide a copy of the Collective Bargaining Agreement. In the absence of such a request, the National Prevailing Wage Center (NPWC) will issue the prevailing wage determination based on the Occupational Employment Statistics (OES) mean for the occupation.

Employers who have received an H-2B prevailing wage determination: Employers who have already received a prevailing wage determination based on an employer-provided survey but who have not yet filed their application with the Chicago National Processing Center (NPC) may request a redetermination from the NPWC irrespective of the time limits set forth in 20 CFR § 655.10(g). An employer who has received a prevailing wage determination based on an employer-provided survey may use the survey-based wage rate in its recruiting, the OFLC said. Employers who have filed their application with the NPC, and whose applications are adjudicated favorably, will receive a supplemental prevailing wage determination (SPWD) based on the OES mean for the occupation, along with the certification. The SPWD will provide the opportunity to seek a redetermination under 20 CFR § 655.10(g). If, upon redetermination, the use of an alternative wage source (SCA, DBA, or CBA) is approved, the employer should return the original certification to the NPC and a new certification will be issued.

OFLC’s DECEMBER 23, 2014 ANNOUNCEMENT

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4. USCIS Adds Five Countries To H-2A, H-2B Visa Program Participation

U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security, in consultation with the Department of State, have added the Czech Republic, Denmark, Madagascar, Portugal, and Sweden to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year. The notice listing the 68 eligible countries was published in the Federal Register on December 16, 2014.

The H-2A and H-2B visa programs allow U.S. employers to bring foreign nationals to the United States to fill temporary agricultural and nonagricultural jobs, respectively. USCIS only approves H-2A and H-2B petitions for nationals of countries the Secretary of Homeland Security has designated as eligible to participate in the programs. USCIS may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.

ANNOUNCEMENT of 68 countries

FEDERAL REGISTER NOTICE of 68 countries

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5. DOL Announces 2015 H-2A Adverse Effect Wage Rates

On December 19, 2014, the Department of Labor’s (DOL) Office of Foreign Labor Certification published a notice in the Federal Register announcing new Adverse Effect Wage Rates (AEWRs) for each state, based on the Farm Labor Survey conducted by the Department of Agriculture. The AEWRs are the minimum hourly wage rates the DOL has determined must be offered and paid by employers to H-2A foreign agricultural workers and workers in corresponding employment for a particular agricultural job and area, so that the wages of similarly employed U.S. workers will not be adversely affected.

The 2015 AEWRs, broken down by state, range from a low of $10 (Alabama) to a high of $13.59 (Kansas, Nebraska, North Dakota, and South Dakota).

NOTICE

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6. ABIL Global: France

New work permit forms are effective January 1, 2015.

For new work permit forms effective January 1, 2015, the employer abroad, the host company in France, and the employee now must provide additional information, summarized below.

Information Required From the Home Company Abroad

a) Registration number or employer ID number of the home company and the name of the registration authority (e.g., the commercial registry and the chamber of commerce).

b) Date of creation of the company.

c) Name of the legal representative of the home company.

d) Main activity of the home company.

e) For intra-company transferees, website or weblink to the Internet page showing the link between the home company and the French host company plus the date of acquisition or date of creation of the French affiliate company.

f) For the international provision of services, the total cost of the services to be provided and the copy of the service agreement between the employer and the client in France.

g) In the absence of a social security bilateral agreement between the home country and France, registration of the foreign employer with the French social security administration for payment of the French social security contribution. Evidence must include proof of registration with Centre National Firmes Etrangères (CNFE, Foreign Firms National Center) and Humanis International in the work permit application. However, these documents may not be available for the very first work permit application and clarification may be needed on what other documents may be provided in lieu of the registration certificates, such as a sworn statement from the employer.

Information Required From the Host Company in France

a) For intra-company transferees, the role of the French entity in the corporate group and the date on which the French entity came under control of the group or was formed.

b) Details of the agent representing the foreign employer in France for the purpose of co-coordinating the work permit application, and the entity responsible for paying the government fees.

c) In case of regulated activity, the identity of the regulating body, and proof and details of certification.

d) The monthly or annual gross salary applicable for an equivalent position in the host company (or in the sector of activity in case of international provision of services), excluding any payment-in-kind.

Information and Documents Required From the Employee

a) Copy of initial employment contract or, if not available, copy of the initial employment offer letter.

b) Copy of employment certificates from previous employers proving adequate professional experience (does not apply to intra-company transfers and secondments).

As noted above, starting January 1, 2015, work permit applications must be made on new forms. Work permits issued by the authorities before this date remain valid.

As some of the requirements may be difficult to fulfill immediately or in a timely manner, adjustments may be made during an interim period. Stay tuned.

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7. New Publications and Items of Interest

USCIS teleconference on DACA expansion. U.S. Citizenship and Immigration Services will hold a “listening session” on Tuesday, January 13, 2015, from 2 to 3:30 p.m. (ET) to discuss the expansion of DACA as part of the recently announced executive actions on immigration. TO REGISTER, submit your e-mail address, then select “Subscriber Preferences” and select the “Event Registration” tab to provide your name and organization, then “Submit.” For more information or to ask about registration, email [email protected].

E-Verify webinar for executives. U.S. Citizenship and Immigration Services will present an “E-Verify for Executives” webinar on January 13 and 20 at 4 p.m. ET. MORE INFORMATION

New border wait time app. U.S. Customs and Border Protection has launched a Border Wait Time app to make it easier for travelers to plan their trips across the border. The app provides estimated wait times and open lane status at land ports of entry, allowing travelers to make an informed decision about where and when to cross the border. Wait times for pedestrian, passenger, and commercial vehicle crossings are broken down by lane type (e.g., standard, SENTRI, NEXUS, FAST, Ready Lane). Travelers can download the app at no charge from Apple’s App Store and Google Play. DETAILS

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 co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

The latest edition adds a chapter on Singapore. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.

Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”

Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”

Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”

This comprehensive guide is designed to be used by:

• Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
• Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
• Attorneys interested in expanding their practice to include global business immigration services.

This publication provides:

• An overview of the immigration law requirements and procedures for over 20 countries;
• Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
• A general overview of the appropriate options for a particular employee; and
• Information on how an employee can obtain and maintain authorization to work in a target country.

Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.

The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis website.

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOG

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8. Member News

Bernard Wolfsdorf has published a new blog entry, “EB-5 Predictions for 2015: The Year of the Goat”

Stephen Yale-Loehr was quoted in the Pittsburgh Post-Gazette in an article about the prospects for comprehensive immigration reform. Mr. Yale-Loehr stated that “the chances of comprehensive immigration reform being enacted in 2015 or 2016 are almost nil.” He noted that although many Republicans would like some kind of reform to attract more Latino voters, “they run into members of their party in the House where in their own districts, immigration is not an issue. That tension in the Republican Party will make it very hard for leaders like John Boehner to get a package that can move through the House.”

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9. 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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