Headlines:

1. File H-1B Petitions for FY 2015 Now! – USCIS anticipates receiving more than enough petitions to reach both caps by April 7.

2. USCIS, Healthcare.gov Provide Highlights of Immigration Status Effects on ACA Eligibility – Immigration status can affect eligibility for health care benefits under the Affordable Care Act.

3. USCIS Holds Teleconference With EB-5 Stakeholders – USCIS discussed targeted employment areas, among other things.

4. State Dept. Waives Visa Fees for Participants in 2014 Special Olympics Summer Games and 2015 Special Olympics World Summer Games – Approximately 250 accredited delegation members are expected to attend the 2014 Games, and 6,500 members will attend the 2015 Games.

5. Hockeytown-Hockey Country Debacle Heats Up – Well, now, it does seem to be April 1. Parts of this article are actually true, but we won’t say which parts.

6. Pro Bono Success Story: Miller Mayer – With this issue, we inaugurate a new feature: pro bono success stories from Alliance of Business Immigration Lawyers firms. Our first story is from Miller Mayer, an ABIL member firm in Ithaca, New York.

7. ABIL Global: Canada – Canada plans to close the federal Investor Program.

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links

Details:

1. File H-1B Petitions for FY 2015 Now!

U.S. Citizenship and Immigration Services (USCIS) is accepting H-1B petitions subject to the fiscal year (FY) 2015 cap starting on April 1, 2014. Cases will be considered accepted on the date that USCIS receives a properly filed petition with the correct fee. USCIS will not rely on the date that the petition is postmarked.

The congressionally mandated cap on H-1B visas for FY 2015 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS anticipates receiving more than enough petitions to reach both caps by April 7. The agency said it will use a random selection process to meet the numerical limit. Non-duplicate petitions that are not selected will be rejected and returned with the filing fees.

Due to the high level of premium processing receipts anticipated, combined with the possibility that the H-1B cap will be met in the first five business days of the filing season, USCIS has temporarily adjusted its current premium processing practice. To facilitate the prioritized intake of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases no later than April 28, 2014. USCIS guarantees a 15-calendar-day processing time.

USCIS will continue to accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for Nonimmigrant Worker, while premium processing is unavailable. Petitioners may also upgrade a pending H-1B cap petition to premium processing once USCIS issues a receipt notice.

While the Form I-797 receipt notice indicates the date USCIS received the premium processing fee, the 15-day processing period will begin no later than April 28, 2014, as noted above. This allows for USCIS to take in the anticipated high number of filings, conduct the lottery to determine which cases meet the cap, and prepare the volume of cases for premium and regular processing.

The 15-day processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date the request is received.

USCIS ANNOUNCEMENT

INFORMATION ON PREMIUM PROCESSING

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2. USCIS, Healthcare.gov Provide Highlights of Immigration Status Effects on ACA Eligibility

U.S. Citizenship and Immigration Services disseminated a stakeholder alert on March 13, 2014, noting that immigration status can affect eligibility for health care benefits under the Patient Protection and Affordable Care Act (ACA), popularly known as Obamacare. USCIS encourages stakeholders to visit http://www.healthcare.gov to learn more, including the most common immigration documents that may be submitted when applying for health insurance; options for families; how immigration status affects eligibility for insurance; and how to verify citizenship and immigration status.

The ACA website provides a long list of documents that can be used to show immigration status.

The website also provides the following list of eligible immigration statuses for health coverage through the “Marketplace”:

• Lawful permanent resident (LPR/green card holder)
• Asylee
• Refugee
• Cuban/Haitian entrant
• Paroled into the U.S.
• Conditional entrant granted before 1980
• Battered spouse, child, or parent
• Victim of trafficking and his or her spouse, child, sibling, or parent
• Granted withholding of deportation or withholding of removal, under the immigration laws or under the Convention Against Torture (CAT)
• Individual with nonimmigrant status (including worker visas, student visas, and citizens of Micronesia, the Marshall Islands, and Palau)
• Temporary Protected Status (TPS)
• Deferred Enforced Departure (DED)
• Deferred Action Status (Deferred Action for Childhood Arrivals (DACA) isn’t an eligible immigration status for applying for health coverage)
• Applicant for:
• – Special Immigrant Juvenile Status
• – Adjustment to LPR status with an approved visa petition
• – Victim of trafficking visa
• – Asylum who has either been granted employment authorization, OR is under 14 and has had an application for asylum pending for at least 180 days)
• – Withholding of deportation or withholding of removal, under the immigration laws or under the Convention Against Torture (CAT) who has either been granted employment authorization, OR is under 14 and has had an application for withholding of deportation or withholding removal under the immigration laws or under the CAT pending for at least 180 days)
• Certain individuals with an employment authorization document:
• – Registry applicants
• – Order of supervision
• – Applicant for cancellation of removal or suspension of deportation
• – Applicant for legalization under IRCA
• – Applicant for TPS
• – Legalization under the LIFE Act
• Lawful temporary resident
• Granted an administrative stay of removal by the Department of Homeland Security
• Member of a federally recognized Indian tribe or American Indian born in Canada
• Resident of American Samoa

The website notes that this information will only be used for determining access to health coverage in the Marketplace and will not be used for immigration enforcement purposes. Also, use of health care services through the Marketplace will not be considered a public charge.

U.S. Residents Living Abroad

The Affordable Care Act requires all “applicable individuals,” including lawful permanent residents (LPRs), to maintain minimum essential health care coverage. The “minimum essential coverage” is required on a monthly basis, but only during those months that qualify people as “applicable individuals.” The penalties for failing to obtain coverage only apply to required coverage months. Applicable individuals must maintain minimum essential coverage for each month, qualify for an exemption, or pay a penalty when filing their federal income tax returns, starting with their 2014 returns.

All LPRs living outside the United States are considered “applicable individuals.” The Affordable Care Act provides that U.S. tax residents, including LPRs, whose tax home is outside the United States and who are not physically present in the United States for at least 330 full days within a 12-consecutive-month period, are treated as having minimum essential coverage for that 12-month period. In general, such individuals qualify for the foreign earned income exclusion under section 911 of the Internal Revenue Code. We do not know yet whether individuals will be required to elect the foreign earned income exclusion to be deemed as having minimum essential coverage or whether a separate form will be developed for this purpose.

LPRs qualifying as having minimum essential coverage need take no further action to comply with the minimum essential coverage requirement during the months they qualify. LPRs with a tax home outside the United States who spend less than 330 full days outside the country within a 12-month period must maintain minimum essential coverage for the applicable period or pay the penalty for failing to do so.

LPRs who seek to claim a section 911-type foreign earned income exclusion to get out of the mandate under ACA should beware of adverse consequences on their LPR status. Living outside the United States for 330 days or more in itself could lead to a finding of abandonment if the LPR cannot successfully establish that his or her visit abroad was temporary under court precedents. Even if LPRs assert that their trips abroad were temporary, claiming a section 911 benefit to avoid the health insurance coverage under Obamacare could bolster the government’s charges that they abandoned their status. Taking a section 911 exemption can also impair the applicant’s ability to show that he or she did not disrupt continuity of residence during the relevant 5- or 3-year period for naturalization purposes. INA § 316(b) states that an absence from the United States of more than 6 months but less than 1 year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence.

Penalty for Failure to Maintain Minimum Essential Coverage

LPRs and other applicable individuals who fail to maintain required minimum essential coverage must pay a penalty, known as the “individual shared responsibility payment.” The annual penalty is calculated in one of two ways, and the applicable individual will pay the higher of:

• 1% of the applicable individual’s yearly worldwide income up to a maximum amount. Only the amount of income above the tax filing threshold, or $10,150 for an individual, is used to calculate the penalty. The maximum penalty is the national average yearly premium for a “bronze plan,” which will be calculated in 2014 at around $4500.
• $95 per person for 2014 ($47.50 per child under 18). The maximum penalty per family using this method is $285.

The applicable individual will owe 1/12th of the annual payment for each month they or their dependents do not have coverage and are not exempt. The payment will be due when LPRs file their 2014 tax returns in 2015.

LPRs and other noncitizens should consult a competent tax professional before making essential decisions regarding their obligations under the Affordable Care Act. LPRs living abroad for significant periods are always at risk of losing their permanent residence status and should contact their ABIL attorney about steps that should be taken to maintain it.

MORE INFORMATION

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3. USCIS Holds Teleconference With EB-5 Stakeholders

U.S. Citizenship and Immigration Services (USCIS) held a teleconference on February 26, 2014, with EB-5 stakeholders. Nicholas Colucci, the new director of USCIS’s Immigrant Investor Program Office, led the teleconference.

Among other things, USCIS said that it is now adjudicating I-924 regional center petitions and I-526 alien entrepreneur petitions in the Washington, DC, field office, but that it continues to adjudicate I-829 removal of conditions and I-485 adjustment of status petitions at the California Service Center for the time being.

USCIS also said it is moving toward greater use of its Electronic Immigration System (ELIS) and has implemented it for intake of I-526 petitions. The agency said it plans to offer webinars on the features of the document library, which allows regional centers to provide electronic versions of certain documents.

USCIS noted that regional center geographic area expansion must be contiguous to approved geographic areas. USCIS said it reviews such expansions on a case-by-case basis to determine whether the expansion will promote economic growth, frequently focusing on the supply chain and labor pool.

Targeted employment areas (TEAs) have been a hot topic for EB-5 stakeholders. USCIS noted that a TEA need not be singular and a new commercial enterprise can be principally located in, doing business in, and creating jobs in a collection of TEAs.

USCIS also confirmed that a high unemployment TEA must be established by a letter from an authorized body of the government of the state in which the new commercial enterprise is located, certifying that the geographic or political subdivision of the metropolitan statistical area, or of the city or town with a population of 20,000 or more in which the enterprise is principally doing business, has been designated a high unemployment area.

As of February 1, 2014, USCIS had approved approximately 440 regional centers. The agency said the average processing time for both regional center cases and direct EB-5 cases is 11 months, but that processing may take longer temporarily due to staffing issues. The agency also said it is planning new EB-5 regulations and a policy guidance manual.

LIST OF EB-5 REGIONAL CENTERS BY STATE

This article is based on multiple reports; USCIS has not yet released a summary of the teleconference.

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4. State Dept. Waives Visa Fees for Participants in 2014 Special Olympics Summer Games and 2015 Special Olympics World Summer Games

The Department of State has waived fees for applications (i.e., machine-readable visa) and visa issuances (i.e., reciprocity) for certain participants in the 2014 Special Olympics Summer Games Invitational taking place in Los Angeles, California, from June 6 to 8, 2014, and the 2015 Special Olympics World Summer Games taking place in Los Angeles from July 25 to August 2, 2015. Approximately 250 accredited delegation members are expected to attend the 2014 Games, and 6,500 members will attend the 2015 Games. The included roles are:

• Athletes and Unified Partners (athletes without an intellectual disability who train and compete on teams with persons with intellectual disabilities);
• Coaches, trainers, referees, and judges;
• Other supporting staff accredited to the Games (e.g., medical doctors, nurses, therapists, Special Olympics staff from regional offices, and technical delegates to oversee each sport);
• Heads and assistant heads of the delegation;
• Medical doctors participating in the Healthy Athletes Program;
• Global Messengers (former athletes acting as spokespersons during the Games); and
• Police officers who will participate in the final leg of the Torch Run.

The Department has authorized U.S. consular posts worldwide to issue multiple-entry B-1/B-2 visas to qualifying applications. International media are not included in the fee waiver and will need to apply and qualify for I visas. “The same holds true for all petitionable classifications, such as temporary workers, entertainers, and cultural exchange groups,” the Department cable states.

RELATED CABLE, which includes additional information about applicable dates and other facts.

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5. Hockeytown-Hockey Country Debacle Heats Up

Following Governor Rick Snyder of Michigan’s proposal to attract 50,000 immigrants with advanced degrees or exceptional abilities in the sciences, arts, or business to Detroit to help revive the depressed economy there, on April 1 traffic was suddenly diverted at the Detroit-Windsor Tunnel and Ambassador Bridge by unnamed forces. Orange traffic cones blocked vehicles attempting to enter the United States. Fishy e-mails turned up stating, “Time for some traffic problems at Detroit-Windsor!” “Got it!” A shadowy anti-immigrant group subsequently took credit while pulling a trout off one of the e-mails, stating that, “Our city is overrun by Canadians! We should rename it the Shamebassador Bridge, eh?!”

Meanwhile, a new bridge proposal for Detroit-Windsor was stymied due to a lack of funds from Washington, DC, for a mandatory $250 million U.S. Customs plaza, required any time a bridge is built at a U.S. border. Nobody took credit for that. When pressed at a press conference for answers about financing the plaza, a rogue Department of Homeland Security spokesperson simply said, “Who you lookin’ at? Are you lookin’ at me?” He then cut the journalist’s microphone and threatened to deport everyone in the room if they didn’t leave immediately. Asked later about the advisability of the optics of that scene, this being a democracy with freedom of speech, the spokesperson said, “If it’s good enough for Darrell Issa, it’s good enough for me. If I get mad enough, I may send out a scathing letter too.” In response, Kirk Hockey of the state’s Department of Transportation blurted, “Puck that!” He acknowledged that the whole thing was a “sticky issue” but was “moving forward.” Fingers were pointed and subpoenaes were issued all around, in passive yet impassioned voices. The Michigan legislature vowed to get to the bottom of what’s now being called the “Hockeytown-Hockey Country Debacle.”

Governor Snyder retorted, “This is all nonsense. Everybody knows Canadians are welcome here!” Meanwhile, Canadians continued to sneak in via checkpoints at Washington, Idaho, Maine, Montana, North Dakota, Minnesota, New Hampshire, New York, Vermont, various airports, and on the backs of snowbirds headed to Florida.

Parts of this article are actually true, but we won’t say which parts. Happy April Fool’s Day!

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6. Pro Bono Success Story: Miller Mayer

Miller Mayer recently received good news regarding a pro bono case that has spanned over two years. In a happy collaboration between our firm’s litigation and immigration groups, and with the generous help of the Buffalo, New York, district immigration office and immigration court, a 47-year-old mentally handicapped Canadian citizen gained legal immigration status and public benefits support for the first time in his life. This support came just in time, as his mother, upon whom he has depended his entire life, is ill with cancer. Our local hospital’s “nurse navigator” acted as the go-between for our firm and a deserving, undocumented family that has been living in our area since 1972. The immigration agency assisted in gently apprehending the handicapped client in our office so that he could apply for a green card in immigration court. The immigration court assisted in kindly arranging a telephonic hearing, thereby not necessitating the handicapped man’s physical presence. And the Social Security Administration, after initially denying the man’s benefits application, was finally compelled by our litigation associate to review and approve the benefits request without a hearing. After many years without health insurance, vocational, or any kind of state support, this family has peace of mind that their handicapped brother will not be left alone when his mother becomes unable to care for him.
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7. ABIL Global: Canada

Canada plans to close the federal Investor Program.

On February 11, 2014, Canada’s Economic Action Plan (EAP) announced the government’s intent to terminate both the Federal Immigrant Investor Program (IIP) and Federal Entrepreneur Program (EN). In doing so, it plans to eliminate several thousand backlogged applications.

The IIP and EN programs have been cornerstones of Canada’s business-oriented immigration programs. In 2011, approximately 10,000 immigrants entered Canada through the IIP, while almost 1,000 entered through the EN.

Although the programs have been longstanding business immigration programs, in recent years they suffered from significant backlogs in processing. Investors, for instance, had to wait at least 54 months for visa issuance, while many entrepreneurs faced even longer processing times.

The current inventory of backlogged applications for the IIP stands at 65,000. Citizenship and Immigration Canada (CIC) anticipates that it would take more than six years to process these cases. To move forward with programs that will more accurately capture the types of investors needed in Canada, CIC has decided to eliminate many of the files currently in the backlog.

However, to date, no official announcement has been made as to which applications will be processed and which applications will be returned to the applicants.

CIC pointed out in its press release that the minimum investment amount for IIP applicants, which is $800,000, is significantly lower than that of investor programs in countries such as the United Kingdom, Australia, and New Zealand. It also noted that investors who arrive in Canada are likely to pay lower taxes than immigrants who come to Canada through programs such as the Federal Skilled Worker Program.

In its backgrounder, CIC explained:

The existing IIP is of limited economic benefit to Canada. There is very little “new” money coming into Canada. Almost all initial investments made through the program come from loans from Canadian banks to provincial governments.

The amount of IIP capital actively invested in economic development initiatives has been disappointing. The requirement for provinces to guarantee repayment of IIP investments after five years limits their ability to invest funds into more high-risk initiatives that tend to reap greater rewards for Canada in terms of true innovation and job creation. Fifteen years after provinces and territories were factored into the equation, less than half of the funds are actively invested.

By doing away with the current IIP and EN programs, the government will “pave the way for new pilot programs that will actually meet Canada’s labour market and economic needs.” These pilot programs will enable Canada to remain competitive in the global economy.

CIC mentioned that the pilot programs will complement the Start-Up Visa program, a former pilot program that is now a permanent part of Canada’s immigration system. Two programs have already been mentioned as replacements for the IIP and EN streams. One will be a new Immigrant Investor Venture Capital Fund and the other a new Business Skills Program.

Details of the new pilots will be announced in the coming months.

The Canadian province of Québec manages its own Investor Program, which requires net assets of at least CAD $1.6 million legally acquired, management experience, and a no-interest loan of CAD $800,000 made to Québec for a five-year period. The Québec Investor Program remains open to French-speaking applicants who have an advanced intermediate level of French as evidenced by a recognized French test.

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8. New Publications and Items of Interest

ACA resources. The National Immigration Law Center (NILC) has released webinar recordings and NILC has posted general resources on health care issues for immigrants.

Ombudsman recommendations on work eligibility for Conrad 30 spouses. On March 24, 2014, the U.S. Citizenship and Immigration Services (USCIS) Ombudsman released recommendations on employment eligibility for spouses of foreign medical doctors accepted into the Conrad 30 program. Under this program, each state may receive up to 30 physicians each year to provide medical services to rural, inner city, and other medically underserved communities. USCIS currently does not permit spouses to change to an employment-authorized nonimmigrant status, even where the dependent independently qualifies for such status.

OSC antidiscrimination posters. The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) announced that its antidiscrimination poster is now available in additional languages. OSC has published translations of its poster in Arabic, Chinese, French, Haitian Creole, Korean, Russian, Spanish, Tagalog, and Vietnamese.

These translations are available on OSC’s worker information page and employer information page.

Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

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.’

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.

Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or [email protected].

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL Blog.

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9. Member News

The following ABIL members and firms are included in the Chambers Global Rankings for Business Immigration:

INDIVIDUALS
Mark Ivener
H. Ronald Klasko
Charles Kuck
Sharon Mehlman
Cyrus Mehta
Angelo Paparelli
Julie Pearl
Bernard Wolfsdorf
Stephen Yale-Loehr

FIRMS
Bener Consultancy
FosterQuan, LLP
Ivener & Fullmer LLP
Klasko, Rulon, Stock & Seltzer, LLP
Laura Devine Solicitors
Pearl Law Group
Seyfarth Shaw, LLP
Veirano Advogados
Wolfsdorf Immigration Law Group

Laura Devine and Nicolas Rollason are listed in the United Kingdom rankings and Isa Soter is listed in the Latin American rankings.

Cyrus Mehta chaired the PLI Immigration Basics 2014 seminar on March 13, 2014. WEBCAST

Julie Pearl co-presented at the annual conference of the Arizona Relocation Alliance (ARA) on March 21, 2014, in Phoenix, Arizona, on global business traveler compliance.

Bernard Wolfsdorf, Founding Partner of Wolfsdorf Rosenthal LLP, has been named Corporate Immigration Lawyer of the Year for 2014 by Who’s Who Legal for the fifth consecutive year. Mr. Wolfsdorf received this distinction after garnering the most votes from over 500 of the top-rated immigration lawyers in the world.

Mr. Wolfsdorf was recently quoted on CNNMoney in an article on a dramatic surge in Chinese applicants for the EB-5 program. “The program has literally taken off to the point [that] in China, the minute anybody hears I’m an immigration lawyer, the first thing they say is, ‘Can we get an EB-5 visa?’ ” “There is a panic being created in China about the demand [getting] so big that there is going to be a visa waiting line,” he said.

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10. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. State Dept. Announces J-1 On-Site Inspections – DOS plans to conduct on-site inspections of J-1 internships and training programs.

2. State Dept. Predicts Visa Availability in the Coming Months; Visa Bulletin Moved – The Department of State’s Visa Office has estimated visa availability in the coming months. Also, DOS has reorganized its website, moving the Visa Bulletin.

3. DOL Adds Q&A to FAQ Re Notification and Consideration of Laid-Off U.S. Workers for PERM Labor Certification Applications – An employer must make a reasonable, good-faith effort to notify each potentially qualified U.S. worker who has been laid off during the six months preceding a PERM application whenever a relevant job opening exists, and invite the worker to apply.

4. USCIS Releases Fact Sheet on Correcting Immigration Records After E-Verify Tentative Nonconfirmations – Correcting inaccuracies in immigration records can prevent future TNCs.

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. State Dept. Announces J-1 On-Site Inspections

The Department of State recently emailed J-1 exchange visitor sponsors to announce that it plans to conduct on-site inspections of J-1 internships and training programs. The visits may be both planned and unannounced. J-1 inspectors may want to speak with responsible officers, supervisors, employees, trainees, and interns, and to inspect facilities, housing, and health insurance arrangements. Inspectors also may review signed Forms DS-7002, Training/Internship Placement Plan, for interns or trainees.

The Alliance of Business Immigration Lawyers (ABIL) recommends that clients contact their ABIL attorneys for advice in specific situations.

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2. State Dept. Predicts Visa Availability in the Coming Months; Visa Bulletin Moved

Visa availability. In the Visa Bulletin for March 2014, the Department of State’s Visa Office makes the following estimates of visa availability in the coming months:

EMPLOYMENT-based categories (potential monthly movement)

Employment First: Current

Employment Second:

Worldwide: Current

China: Three to five weeks

India: No forward movement

Employment Third:

Worldwide: This cut-off date has been advanced over four and one half years since last spring in an effort to generate new demand. After such a rapid advance of a cut-off date applicant demand for number use, particularly for adjustment of status cases, can be expected to increase significantly. Once such demand begins to materialize at a greater rate it could have a significant impact on this cut-off date situation. Little if any forward movement of this cut-off date is likely during the next few months.

China: Will remain at the worldwide date

India: Little if any movement

Mexico: Will remain at the worldwide date

Philippines: Three to six weeks

Employment Fourth: Current

Employment Fifth: Current

The above projections for the…Employment categories are for what is likely to happen during each of the next several months based on current applicant demand patterns. Readers should never assume that recent trends in cut-off date movements are guaranteed for the future, or that “corrective” action will not be required at some point in an effort to maintain number use within the applicable annual limits. The determination of the actual monthly cut-off dates is subject to fluctuations in applicant demand and a number of other variables. Unless indicated, those categories with a “Current” projection will remain so for the foreseeable future.

VISA BULLETIN FOR MARCH 2014

Visa Bulletin moved. The Department of State has redesigned and reorganized its website at http://www.travel.state.gov. The Visa Bulletin is now found under “Law and Policy” in the Visas section of the website. Visitors to the website have several ways to access the Visa Bulletin.

From the homepage:

• Click on the link for usvisas.state.gov, located on the upper right side of the main graphic, or the link “U.S. Visas” located at the bottom of the page. These links will take you to the Visas section of the website.
• Once in the Visas section, scroll down the page to the “We Want You to Know” section.
• Click on the icon, “Check the Visa Bulletin,” or click on the link for the Visa Bulletin in the Law and Policy box.
• Alternately, once in the Visas section of the website, hover over the “Immigrate” icon along the top of the page. A drop-down menu will appear with a link to the Visa Bulletin.

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3. DOL Adds Q&A to FAQ Re Notification and Consideration of Laid-Off U.S. Workers for PERM Labor Certification Applications

The Department of Labor’s Employment and Training Administration has added a new question and answer (Q&A) to its frequently asked questions (FAQ). The new Q&A concerns notification and consideration of laid-off U.S. workers for PERM labor certification applications.

The new Q&A asks, “How does an employer demonstrate that it notified and considered laid-off U.S. workers for the job opportunity listed on the ETA Form 9089?” The answer notes that some employers have misconstrued the regulations to require only that they inform workers when laid off that the employer may have future positions and inviting the worker to monitor the employer’s job postings and apply, rather than their actively notifying and considering the laid-off workers. In fact, the Q&A notes, misapplication of the regulatory requirements will result in denial of a PERM application. The employer must make a reasonable, good-faith effort to notify each potentially qualified worker who has been laid off during the six months preceding the application whenever a relevant job opening exists and invite the worker to apply.

The Q&A notes that an employer who files multiple labor certifications can satisfy its responsibilities under the relevant regulation by notifying each laid-off worker (in the manner chosen by the worker) at least once a month that a list of current relevant job openings is maintained electronically on a website operated by the employer. “Simply informing a laid-off worker to monitor the employer’s website for future openings and inviting the worker, if interested, to apply for those openings, will not satisfy the employer’s regulatory obligation to notify all of its potentially qualified laid-off U.S. workers of the job opportunity,” the Q&A states.

The Q&A adds that an employer must maintain documentation showing that it has met its notice and consideration requirements, including copies of all relevant letters, e-mails, faxes, Web pages (including those listing details of the relevant job openings and applications by laid-off workers for those openings), and other contemporaneous documents that show when and how notice and consideration was given. In addition, an employer must obtain and maintain written documentation that a laid-off worker has declined to receive notices, requested discontinuation of the notices, or refused to give or update contact information.

NEW Q&A

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4. USCIS Releases Fact Sheet on Correcting Immigration Records After E-Verify Tentative Nonconfirmations

U.S. Citizenship and Immigration Services (USCIS) has released a fact sheet on how to correct immigration records after resolving a Tentative Nonconfirmation (TNC) in E-Verify. USCIS noted that an employer may receive a TNC because immigration records are inaccurate. Correcting them can prevent future TNCs.

FACT SHEET, which includes several ways immigration records can be corrected

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5. New Publications and Items of Interest

DHS OIG report on ensuring that H-1B, L-1 employers pay applicable border security fees. The Department of Homeland Security’s Office of Inspector General (OIG) has published a report, “USCIS Controls To Ensure Employers Sponsoring H-1B and L-1 Employees Pay Applicable Border Security Fee.” Employers must pay a border security fee of up to $2,250 per petition if they have 50 or more employees in the United States, and if their workforce consists of 50 percent or more H-1B or L-1 nonimmigrant workers. OIG audited USCIS’s foreign worker petition process to determine whether employers comply with the fee requirement. Based on its review of 203 petitions for foreign workers, OIG determined that employers typically paid the fee when required. However, 3 percent of the random petitions and 21 percent of the petitions OIG selected “judgmentally based on select characteristics” contained errors that the agency believed could be prevented if USCIS made improvements to its fee collection process. OIG said USCIS needs to implement processes to scrutinize information employers provide to ensure that they pay the proper fees. Some USCIS officers already verify information employers provide regarding their workforce to ensure that the proper fees are collected, but OIG found that this practice was inconsistent across USCIS because there was no requirement that officers do so. Without verification, an employer’s declaration was typically the sole basis for determining whether the employer was required to pay the border security fee.

OIG recommended that USCIS electronically capture employer information regarding the number of employees for analysis and comparison. OIG also recommended that USCIS implement procedures to identify employers who pay fees inconsistently, expand the use of readily available resources to assess the reasonableness of employer-provided information, and conduct further analysis to determine whether an average of 30 minutes was the appropriate amount of time to adjudicate H-1B and L-1 petitions. USCIS generally concurred with these recommendations.

OIG REPORT

DHS OIG report on ICE’s worksite enforcement administrative inspection process. The Department of Homeland Security’s Office of Inspector General (OIG) has published a report, “U.S. Immigration and Customs Enforcement’s Worksite Enforcement Administrative Inspection Process.” OIG found that generally, ICE’s worksite enforcement administrative inspection process met the requirements of the Immigration Reform and Control Act of 1986. However, OIG said, ICE’s Homeland Security Investigations directorate has not adequately monitored or evaluated the performance or outcomes of implementing its administrative inspection process through the worksite enforcement strategy. Specifically, ICE’s Homeland Security Investigations headquarters did not adequately oversee the field offices to ensure that they were consistent in issuing warnings and fines, and some field offices issued significantly more warnings than fines. The directorate also negotiated fines with employers, in some cases substantially reducing the amounts. OIG said that Homeland Security Investigations’ inconsistent implementation of the administrative inspection process, plus the reduction of fines, may have hindered its mission to prevent or deter employers from violating immigration laws. OIG made recommendations to improve ICE’s implementation of its worksite enforcement strategy through the administrative inspection process.

OIG REPORT

Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

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.’

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.

Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or [email protected].

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL Blog.

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6. Member News

H. Ronald Klasko, Bernard Wolfsdorf, and Stephen Yale-Loehr will speak about the EB-5 immigrant investor program at the Invest in America Summit on March 22-23, 2014, at the Jing An Shangri-la Hotel in Shanghai, China.

Mr. Klasko recently published several blog entries. “Chinese EB-5 Quota Retrogression – Part 2” “FAQs on EB-5 Quota Backlog”

Cyrus Mehta has published a new blog entry. “DOL Policy on Laid-Off U.S. Workers for PERM Labor Certification Applications”

Mr. Yale-Loehr was quoted on February 25, 2014, in an article on USNews.com about deportations under the Obama administration. He noted that the executive branch has wider discretion than the White House admits with respect to deportations. He said that stopping deportations would be a political risk that the president doesn’t want to take. “He has wide legal authority, but you have to balance that against the will of the people and politically what you can get through Congress if you push your executive authority too far,” he said.

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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. USCIS Expands Site Visits To Review of L-1 Petitions – The agency is reviewing extensions of L-1 petitions and L-1 job duties and salaries to determine whether they are consistent with the L-1’s classification.

2. H-1B Alert: Filing Starts April 1 for Next Fiscal Year – This past fiscal year, H-1B numbers were exhausted within the first five days of filing. The Alliance of Business Immigration Lawyers (ABIL) anticipates that the numbers will run out quickly again this year.

3. Half a Million Companies Now Participate in E-Verify, USCIS Announces – E-Verify has experienced significant growth.

4. USCIS Adds Countries to Participation in H-2A and H-2B Programs – Austria, Italy, Panama, and Thailand have been added to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs.

5. Federal Judge Rules in Favor of Stanford Student on ‘No-Fly’ List – After a long legal battle, a federal judge ruled that a Malaysian Stanford student is entitled by due process to a remedy that requires the government to “cleanse and/or correct” its lists and records of mistaken information.

6. ABIL Global: Australia – The Australian government has revised labor market testing requirements in the 457 visa program.

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. USCIS Expands Site Visits To Review of L-1 Petitions

USCIS’s Fraud Detection and National Security (FDNS) Directorate has expanded its employer site visits to include review of L-1 post-adjudication petitions. Recent reports indicate that the agency is reviewing extensions of L-1 petitions and L-1 job duties and salaries to determine whether they are consistent with the L-1’s classification as an executive or manager (L-1A) or specialized knowledge worker (L-1B).

USCIS may conduct announced or unannounced site visits as part of the visa petition process. Employers have been reporting that the FDNS inspectors’ queries are similar to those made in H-1B site visits, particularly about whether wages are appropriate for the visa application, visa category, work location, hours, job duties, title, and experience of the employee. The employee may be questioned directly about his or her job duties.

FDNS’s site visits are funded by the $500 anti-fraud fee paid with H-1B and L-1 petitions. Until recently, such compliance audits have primarily involved H-1B employers. More than 17,000 such visits occurred in FY 2011, which was an increase over 2010.

USCIS’s Office of Inspector General in August recommended, among other things, that USCIS make a site visit a requirement before extending a one-year new office L-1 petition. USCIS concurred and said it expected to begin conducting post-adjudication domestic L-1 compliance site visits in FY 2014.

REPORT

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2. H-1B Alert: Filing Starts April 1 for Next Fiscal Year

Congress sets a limit on the number of H-1B visas available each year. This past fiscal year, H-1B numbers were exhausted within the first five days of filing. The Alliance of Business Immigration Lawyers (ABIL) anticipates that the numbers will run out quickly again this year.

If U.S. Citizenship and Immigration Services (USCIS) receives more petitions than it can accept, it will use a lottery system to randomly select the number of petitions filed during that period to reach the numerical limit. USCIS did this last year. The agency will reject petitions that are subject to the cap but not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.

Every time an employer hires an individual for a specialty occupation, an H-1B number must be available. (An exception arises where the individual is already with another employer in H-1B status, but this employer cannot be a university/college or a nonprofit government research organization.) When numbers run out, the employer must wait until the next fiscal year to file for an H-1B. In some cases, there may be no other nonimmigrant visa option for the individual and the individual may have to leave the U.S. or, at least, not be able to work for the employer until a year later.

While the H-1B numbers for the next fiscal year do not become available again until October 1, 2014, employers may file petitions to request numbers as early as six months in advance, beginning on April 1, 2014. That date signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached. The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (master’s or higher) from a U.S. university.

As in past years, some foreign nationals are not subject to the H-1B cap, including individuals who already have been counted toward the cap in a previous year and have not been outside the United States subsequently for one year or more. Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities are exempt from the H-1B cap. All other employers should be aware of the H-1B cap.

ABIL encourages employers to review their hiring needs and determine whether they should initiate H-1B processing for anticipated hires, or even recent hires in other nonimmigrant status now.

You should consider filing an H-1B petition this April if:

• You want to hire an individual who is not in H-1B status already.
• You are hiring an individual who is already in H-1B status but is currently employed with a college/university (this situation requires a new H-1B number).
• You are hiring an individual who is already in H-1B status but is with a nonprofit government research organization (this situation requires a new H-1B number).
• Your employee is in F-1 student status.
• Your employee is in L-1B status and is considering seeking legal permanent residence in the United States.
• Your employee is in another nonimmigrant status and may want to seek legal permanent residence in the United States.

ABIL recommends that clients keep their ABIL attorney apprised of all new hires needing H-1B status before October 1, 2014. Examples would include F-1 students hired with optional practical training that expires before April 1, 2014, or current L-1B nonimmigrants who will have spent five years in that status as of any date before October 1, 2014. Contact your ABIL attorney now if you have any questions or would like to file an H-1B petition.

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3. Half a Million Companies Now Participate in E-Verify, USCIS Announces

U.S. Citizenship and Immigration Services (USCIS) announced on January 23, 2014, that more than 500,000 companies now use E-Verify. Employers use the online E-Verify system to check an employee’s work authorization status. USCIS said that 98.8 percent of work-authorized employees are confirmed “instantly or within 24 hours, requiring no further employee or employer action.”

USCIS noted that its efforts to enhance the system’s security include agreements with select states’ departments of motor vehicles to ensure the authenticity of driver’s licenses that employees use as identity documents; Self Check, which allows workers to look up their own employment eligibility status and correct their records before they seek employment; and a program that locks Social Security numbers suspected of being misused for employment eligibility verification.

E-Verify has experienced significant growth since its establishment in 1996. Annual enrollments increased tenfold during the program’s first 16 years, from 11,474 in fiscal year (FY) 1996 to 111,671 in FY 2012. During FY 2013, employers used E-Verify more than 25 million times.

To commemorate the half-million-participant milestone, USCIS released “E-Verify for Business Leaders,” a video that introduces the program to prospective users. USCIS also updated its E-Verify website with “plain-language” content and easy-to-follow graphics.

ANNOUNCEMENT

VIDEO

WEBSITE

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4. USCIS Adds Countries to Participation in H-2A and H-2B Programs

U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security, in consultation with the Department of State, has added Austria, Italy, Panama, and Thailand 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 63 eligible countries was published January 17, 2014, in the Federal Register.

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5. Federal Judge Rules in Favor of Stanford Student on ‘No-Fly’ List

U.S. District Judge William Alsup of San Francisco, California, recently ruled that a Malaysian Stanford student’s legal rights were violated because she was wrongly put on the “no-fly” list nine years ago. The judge noted that the “government concedes that the plaintiff is not a threat to national security.” He said she is “entitled by due process to a … remedy that requires the government to cleanse and/or correct its lists and records of the mistaken information.”

Rahinah Ibrahim attempted to board a flight in 2005 to Hawaii from San Francisco International Airport, but was told she was on the no-fly list. After a two-hour ordeal at the airport, during which she was questioned and denied any connection to terrorism, an agent of the Department of Homeland Security told her that her name had been removed from the no-fly list and she was free to fly to Hawaii. She then flew from Hawaii for a visit home to Malaysia. But when she tried to return via Kuala Lumpur International Airport two months later, she was stopped and the U.S. Embassy said her U.S. student visa was cancelled due to a suspected connection to terrorism. An eight-year legal battle followed, during which she was unable to return to the United States. She finished her Stanford education remotely.

Her attorneys filed suit seven years ago against several agencies, including the Federal Bureau of Investigation and the Department of Homeland Security. Government attorneys have been secretive, citing national security issues, Judge Alsup noted, and it was difficult to gain access to information. “It has gone so far as even to redact from its table of authorities some of the reported case law on which it relies! This is too hard to swallow,” Judge Alsup noted.

The American Civil Liberties Union has filed suit in a similar case, representing 13 U.S. citizens who were blocked from air travel after a failed bombing attempt on Christmas Day 2009. The 13 citizens were not told why they were blocked or how to remove their names from the list. ACLU attorney Nusrat Choudhury said, “The Constitution prohibits the government from smearing people as suspected terrorists due to an entirely secret process, then not giving them a fair chance to defend themselves.”

BACKGROUND ON THE IBRAHIM CASE AND SIMILAR CASES

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6. ABIL Global: Australia

In June 2013, the previous government of Australia decided to undo decades of progressive reform and introduce Labour Market Testing (LMT) into the 457 program. That government was defeated in September 2013 and the new government has substantially watered down the LMT regime with amendments passed on November 23.

The subclass 457 visa is the most commonly used visa to sponsor overseas skilled workers to work in Australia temporarily. Subclass 457 is uncapped and driven by employer demand. This generally means that employers will sponsor overseas workers more in times of high economic growth and low unemployment.

An application for approval of sponsorship must be accompanied by evidence in relation to LMT, unless the employer is exempt from doing so. Legislation specifies the manner in which such testing is to be carried out as well as the period in which LMT must have been undertaken. It also sets requirements relating to the sponsor’s attempts to recruit local labor. However, the November amendments provide for substantial exemptions from the LMT requirements.

The first such exemption provides that LMT is not required if it would be inconsistent with Australia’s international trade obligations, which fall into two categories:

• World Trade Organization General Agreement on Trade in Services (WTO-GATS) commitments
• Free trade agreement commitments

Consequently, sponsorship of citizens from WTO member countries would not require LMT. Similarly, intra-company transferees to Australia from a business established in a WTO country are exempt from LMT.

In addition to exemptions based on international trade agreements, sponsorship of executives and senior managers are exempt, as are specialists with two years of employment in Australia. Sponsors are also exempt from LMT for employees in positions that require tertiary qualifications. However, certain occupations cannot be exempted. The current list of occupations in that category includes a range of highly qualified engineers and nurses.

Finally, a sponsor may be exempt from LMT in the case of major disaster in Australia.

FACT SHEET ON THE 475 VISA

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7. New Publications and Items of Interest

Immigration enforcement actions in FY 2012. The Department of Homeland Security has released “Immigration Enforcement Actions: 2012.” The report presents information on the apprehension, detention, return, and removal of foreign nationals in fiscal year 2012.

Key findings include:

• CBP determined that 194,000 foreign nationals were inadmissible.
• DHS apprehended 643,000 foreign nationals; 70 percent were citizens of Mexico.
• ICE detained approximately 478,000 foreign nationals, an all-time high.
• 230,000 foreign nationals were returned to their home countries without a removal order.
• DHS removed 419,000 foreign nationals from the United States. The leading countries of origin for those removed were Mexico, Guatemala, Honduras, and El Salvador.
• Expedited removal orders accounted for 163,000, or 39 percent, of all removals.
• Reinstatements of final orders accounted for 149,000, or 36 percent, of all removals.
• ICE removed 199,000 known criminal aliens from the United States, an all-time high.

REPORT

Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

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.’

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.

Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or [email protected].

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL Blog.

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8. Member News

Mark Ivener recently provided EB-5 immigration advice on due diligence. VIDEO

Charles Kuck spoke on Strategies for E-1 and E-2 Investors at the American Immigration Lawyers Association’s Mid-Year Conference in Grand Cayman on January 24, 2014.

Robert Loughran co-wrote a chapter and was a discussion leader on “Establishing New Office Intracompany Transfer Ls and the Path to Permanent Residency” at the American Immigration Lawyers Association’s Mid-Year Conference in Grand Cayman on January 24, 2014.

Mr. Loughran was quoted on January 9, 2014, by the Houston Chronicle on the impact of a December 31, 2013, federal court decision clarifying that neither probable cause nor reasonable suspicion was required for U.S. border agents to seize, inspect, and copy smartphones, laptops, tablets, or any other form of electronic device in the possession of an arriving traveler, including a U.S. citizen.

Cyrus Mehta has authored or co-authored several new blog entries. “GOP Principles on Immigration—A Path to Legal Status” “Top Ten Posts on the Insightful Immigration Blog in 2013” “One Step Forward, Two Steps Backwards: Immigration Benefits for Same Sex and Domestic Partners in India”

Angelo Paparelli has authored or co-authored several new blog entries. “Why Are Immigration Lawyers So Happy?” “Immigration Voices: Egads! I-9 Questions That Keep Me Up at Night”

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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 OIG Report on EB-5 Regional Center Program Stirs Controversy – The Department of Homeland Security’s Office of Inspector General has released a controversial new report on the EB-5 regional center program that includes four recommendations.

2. OSC Reiterates That Employers May Not Institute a Hiring Preference for U.S. Citizens Unless Required To Do So – The OSC encourages employers considering a restriction on hiring based on citizenship status to ensure that it is properly restricting the position. Not to do so is to risk the imposition of sanctions, penalty fines, reporting requirements, and back pay.

3. OSC Clarifies I-9 Verification for Refugees, Asylees – The OSC clarified the application of documentation requirements related to I-9 work authorization verification for refugees and asylees.

4. DOL Postpones Action on Decision Vacating Supplemental Prevailing Wage Determinations – The DOL is postponing action on a decision vacating supplemental prevailing wage determinations issued in light of an interim final H-2B wage rule.

5. Philippines Requests TPS Designation – The government of the Philippines has asked the Obama administration to designate the Philippines for temporary protected status in the wake of Typhoon Yolanda/Haiyan.

6. SSA Updates Operations Manual Re Same-Sex Marriages in Foreign Jurisdictions – The SSA issued new instructions for obtaining legal opinions on the validity of foreign same-sex marriages in light of the Supreme Court decision in United States v. Windsor. The new instructions include policy, process, and procedures for processing same-sex marriage cases.

7. DHS, USCIS Personnel Changes Announced – The U.S. Senate confirmed the nomination of Alejandro Mayorkas to be Deputy Secretary of Homeland Security; the Obama administration nominated Leon Rodriguez to lead USCIS.

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links

Details:

1. DHS OIG Report on EB-5 Regional Center Program Stirs Controversy

The Department of Homeland Security’s Office of Inspector General (OIG) has released a controversial new report on the EB-5 regional center program that includes four recommendations.

OIG report highlights. As background, Congress enacted the employment-based fifth preference (EB-5) green card category in 1990 to stimulate the U.S. economy through direct job creation and capital investment by foreign investors. Congress added a regional center pilot program to the EB-5 category in 1992 to pool investor money in a defined industry and geographic area to create both direct and indirect jobs.

An EB-5 investor must invest $500,000 if his or her investment is in a high unemployment area or a rural area. Otherwise the investor must invest $1 million. Each foreign investor must create or preserve at least 10 full-time jobs for qualifying U.S. workers within 2 years.

The OIG report notes several conditions that prevent U.S. Citizenship and Immigration Services (USCIS) from administering and managing the EB-5 regional center program effectively. First, the laws and regulations governing the program do not give USCIS authority to deny or terminate a regional center’s participation based on fraud or national security concerns; the program extends beyond the current USCIS mission. Second, USCIS is unable to demonstrate the benefits of foreign investment in the U.S. economy.

Additionally, the report notes, USCIS has difficulty ensuring the integrity of the regional center program. USCIS does not always ensure that regional centers meet all program eligibility requirements, and USCIS officials differently interpret and apply regulations and policies. Also, USCIS did not always document its decisions and responses to inquiries, making the program vulnerable to perceptions about internal and external influences.

As a result, the report states, USCIS is limited in its ability to prevent fraud and national security threats and cannot demonstrate that the program is improving the U.S. economy and creating jobs for U.S. citizens, as intended by Congress.

OIG recommends that USCIS: (1) update and clarify its regulations; (2) develop memoranda of understanding with the Departments of Commerce and Labor and the Securities and Exchange Commission to provide expertise and involvement in the adjudication of applications and petitions for the EB-5 regional center program; (3) conduct comprehensive reviews to determine how EB-5 funds have actually stimulated growth in the U.S. economy in accordance with the intent of the program; and (4) establish quality assurance steps to promote program integrity and ensure that regional centers comply with regulatory requirements.

Reaction. IIUSA, the industry trade association that represents over 130 EB-5 regional centers that serve over 40 states and territories and account for over 95% of the capital flowing through the EB-5 regional center program, said it was “puzzled” by the OIG’s findings and conclusions. IIUSA said that many of the reforms the OIG identified as necessary were already underway, and that USCIS had refuted other criticisms in its response to the report.

For example, IIUSA noted that USCIS has created a new Immigrant Investor Program Office staffed by trained economists, experts in business and immigration law, and fraud and national security specialists, now led by a former director of the Treasury Department’s Financial Crimes Enforcement Network. USCIS plans for all EB-5 related adjudications to be relocated to this office over the next six months. IIUSA also noted that USCIS has clarified its guidance for adjudicators in a comprehensive EB-5 policy memorandum and has strengthened interagency relationships.

IIUSA said these and other rebuttals in the USCIS response “should raise significant questions about the credibility of the report,” which was “further undermined by the recent resignation of [Charles Edwards, DHS’s Acting Inspector General], who himself was under investigation.”

The OIG report notes that USCIS agreed with three of the four OIG recommendations. Details of the OIG’s analysis and USCIS’s response are included in the report, “United States Citizenship and Immigration Services’ Employment-Based Fifth Preference (EB-5) Regional Center Program,” OIG-14-19.

IIUSA’s STATEMENT IN RESPONSE TO THE REPORT

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2. OSC Reiterates That Employers May Not Institute a Hiring Preference for U.S. Citizens Unless Required To Do So

In response to a query, Alberto Ruisanchez, Acting Deputy Special Counsel of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), reiterated that employers may not institute a hiring preference for U.S. citizens unless required to do so to comply with a law, regulation, executive order, or government contract. Individuals protected from citizenship status discrimination include U.S. citizens, lawful permanent residents, refugees, and asylees.

Mr. Ruisanchez said the OSC encourages employers considering a restriction on hiring based on citizenship status to ensure that it is properly restricting the position. Not to do so is to risk the imposition of sanctions, penalty fines, reporting requirements, and back pay.

Mr. Ruisanchez noted that the OSC cannot give an advisory opinion based on any particular set of facts. The query was from Gretta Rowold, Executive Director of Secure Research Operations for the University of Oklahoma’s Office of Legal Counsel. She told the OSC that the university negotiates sponsored research agreements with non-university parties and periodically is asked to restrict participants to U.S. citizens only, and that the organizations sponsoring the research in some cases are unwilling or unable to provide justification for the requirement other than stating that the organization does sensitive work, or has a U.S. government customer who wouldn’t like it if non-U.S. citizens were involved in their projects. She asked the OSC what exposure the university might have under the law, and what type of justification or documentation is appropriate to protect the university against liability.

OSC’s RESPONSE LETTER, sent on November 20, 2013.

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3. OSC Clarifies I-9 Verification for Refugees, Asylees

In response to a query, Seema Nanda, Deputy Special Counsel of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), clarified the application of documentation requirements related to Form I-9 work authorization verification for refugees and asylees. Eileen Scofield of Alston & Byrd asked what steps employers should take when an asylee or refugee worker presents for initial I-9 verification purposes a Form I-766, employment authorization document (EAD), that subsequently expires, considering the fact that asylees and refugees have unrestricted work authorization.

Ms. Nanda noted that when completing the I-9, a worker must select a box in Section 1 indicating his or her status. The selection applicable to “refugees and asylees—alien authorized to work” has a field that requests “expiration date, if applicable.” The I-9 instructions provide that refugees or asylees may write “N/A” in the space provided for the expiration date in Section 1. After employees complete Section 1, they must present documents evidencing identity and employment eligibility for the employer to complete Section 2. USCIS guidance provides that refugee and asylee workers are not required to present an EAD for Section 2 to complete the I-9. They may choose to present other documents, such as a driver’s license (List B) and unrestricted Social Security card (List C), to satisfy the I-9 requirements. The I-9 instructions further provide that reverification of a worker’s employment authorization does not apply to refugees and asylees “unless they chose to present evidence of employment authorization in Section 2 that contains an expiration date and requires reverification, such as Form 1-766, Employment Authorization Document.” Thus, Ms. Nanda said, an employer that reverifies the employment authorization of an asylee or refugee who originally presented an EAD upon the EAD’s expiration is following USCIS guidance. OSC therefore would be “unlikely to find a violation of the anti-discrimination provision unless the employer somehow acted in a discriminatory manner based on national origin or citizenship status,” Ms. Nanda said.

Ms. Scofield also asked about refugee and asylee workers who are unable to present a new unexpired EAD by the date of expiration of their originally presented EAD. Ms. Nanda responded that for reverification, an employee may present unexpired documentation from either List A or List C showing he or she is still authorized to work. Employers cannot require the employee to present a List A document. Thus, she noted that a refugee or asylee who originally presented an EAD could, for example, present an unrestricted Social Security card at reverification. Furthermore, the receipt rule would allow a worker to present a receipt for a lost, stolen, or misplaced document for reverification purposes. To the extent an employer requires an employee to present a specific document, such as an unexpired EAD, for reverification purposes, it may violate the anti-discrimination provision’s prohibition against document abuse, Ms. Nanda warned.

OSC’s RESPONSE LETTER, which was sent on September 25, 2013.

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4. DOL Postpones Action on Decision Vacating Supplemental Prevailing Wage Determinations

The Department of Labor (DOL) announced on December 20, 2013, that it is postponing action on a decision vacating supplemental prevailing wage determinations issued in light of an interim final H-2B wage rule.

On December 3, 2013, the Board of Alien Labor Certification Appeals (BALCA) issued an en banc decision in Matter of Island Holdings LLC (2013-PWD-00002). That decision vacated the supplemental prevailing wage determinations issued in light of the DOL’s interim final H-2B wage rule (78 Fed. Reg. 24047, Apr. 24, 2013). A class action complaint has been filed in the district court in the Eastern District of Pennsylvania, challenging the Island Holdingsdecision, CATA v. Perez, 13-CV-07213.

The DOL’s Office of Foreign Labor Certifications (OFLC) said that after a full review of the Island Holdings decision and the district court complaint, the DOL has decided to postpone action on the Island Holdings decision pending judicial review. “This action is in the interest of justice, given the confusion and substantial disruption that would be created if the Department implemented the decision and it was subsequently overturned by the district court,” the OFLC noted. Accordingly, all OFLC actions related to the resolution of appeals in the supplemental prevailing wage decisions will be stayed pending the resolution of the district court action.

ANNOUNCEMENT

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5. Philippines Requests TPS Designation

The government of the Philippines has asked the Obama administration to designate the Philippines for temporary protected status (TPS) in the wake of Typhoon Yolanda/Haiyan, which killed more than 6,000 people and displaced millions. The request was relayed to the Department of Homeland Security (DHS). Not only would this give an estimated 1 million Filipinos in the United States the opportunity to stay and work, but it would also allow them to send remittances back home. As of the date of publication of this newsletter, the DHS has not acted on the request.
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6. SSA Updates Operations Manual Re Same-Sex Marriages in Foreign Jurisdictions

The Social Security Administration (SSA) has added a new section to its Program Operations Manual System (POMS) providing instructions for obtaining legal opinions on the validity of foreign same-sex marriages in light of the Supreme Court’s decision in United States v. Windsor. The new POMS instructions include policy, process, and procedures for processing same-sex marriage cases.

The SSA noted that under Windsor, the agency is no longer prohibited from recognizing same-sex marriages for purposes of determining benefits. Consequently, all claims filed on or after June 26, 2013, or that were pending final determination at the time of that decision are subject to Windsor instructions. The SSA said it is working with the Department of Justice to interpret the decision.

The new POMS instructions are available HERE, HERE and HERE.

DECISION IN UNITED STATES V. WINDSOR

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7. DHS, USCIS Personnel Changes Announced

The U.S. Senate confirmed the nomination of Alejandro Mayorkas to be Deputy Secretary of Homeland Security on December 20, 2013, by a vote of 54-41. Mr. Mayorkas has been head of U.S. Citizenship and Immigration Services (USCIS) since 2009.

Meanwhile, the Obama administration nominated Leon Rodriguez to lead USCIS. Since 2011, Mr. Rodriguez has served as the Director of the Office for Civil Rights at the Department of Health and Human Services. From 2010 to 2011, he served as Chief of Staff and Deputy Assistant Attorney General for Civil Rights at the Department of Justice (DOJ). Previously, Mr. Rodriguez was County Attorney for Montgomery County, Maryland, from 2007 to 2010. He was a principal at Ober, Kaler, Grimes & Shriver in Washington, DC, from 2001 to 2007. He served in the U.S. Attorney’s Office for the Western District of Pennsylvania from 1997 to 2001, first as Chief of the White Collar Crimes Section from 1998 to 1999 and then as First Assistant U.S. Attorney until his departure. Before joining the U.S. Attorney’s Office, Mr. Rodriguez was a trial attorney in the DOJ’s Civil Rights Division from 1994 to 1997 and a Senior Assistant District Attorney at the Kings County District Attorney’s Office in New York from 1988 to 1994. He received a B.A. from Brown University and a J.D. from Boston College Law School.

WHITE HOUSE ANNOUNCEMENT FOR MR. RODRIGUEZ

MORE ON MR. MAYORKAS

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8. New Publications and Items of Interest

Vote for Best and Worst: IMMI Awards. The “Nation of Immigrators” blog is preparing its annual list of the year’s best and worst in immigration policy and law. FOR DETAILS AND TO VOTE

EOIR launches Facebook page. The Executive Office for Immigration Review (EOIR) has opened a Facebook account to assist the agency in providing interested parties with information about news, events, and announcements through a second social media channel. EOIR’s website, will continue to be the agency’s primary source of information online. Receive EOIR updates by liking EOIR on Facebook and by continuing to follow @DOJ_EOIR on Twitter at follow @DOJ_EOIR.

Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.

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.’

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.

Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or [email protected].

ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL Blog.

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9. Member News

Kehrela Hodkinson was quoted in an article on U.S. visa questions in the November 20, 2013, edition of the Financial Times. She noted that clients are not always likely to answer incriminating questions on visa applications truthfully.

Charles Kuck has published a new blog entry. “Obama—Still the Deportation President”

Cyrus Mehta has authored or co-authored several new blog entries. “Top Ten Posts on the Insightful Immigration Blog in 2013” “One Step Forward, Two Steps Backwards: Immigration Benefits for Same Sex and Domestic Partners in India”

Angelo Paparelli has authored a new blog entry. “Immigration Triangulation—Another Dysfunctional Government Policy”

Mr. Paparelli has announced the 2013 Nation of Immigrator (“IMMI”) awards.

Bernard Wolfsdorf is the Program Chair for the American Immigration Lawyers Association’s Midyear Conference focusing on “Strategies in Advising Entrepreneur & Investor Visas,” to be held January 24, 2014, at the Westin Grand Cayman Seven Mile Beach Resort. Mr. Wolfsdorf will be the Discussion Leader on the EB-5 Essentials Panel.

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10. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any pos

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