Headlines:

1. Infosys Settles Visa Fraud and Abuse Case for Record $34 Million – Infosys has agreed to pay a record $34 million civil settlement based on allegations of systemic visa fraud and abuse of immigration processes. The company also has agreed to enhanced corporate compliance measures.

2. Office of Foreign Labor Certification Deals With Backlogs After Shutdown – OFLC has implemented temporary changes to deal with backlogs resulting from the recent federal government shutdown.

3. Visa Office Forecasts Changes in Some Employment Cut-Off Dates – The Department of State’s Visa Office has projected changes in some employment cut-off dates.

4. OCAHO Substantially Reduces Penalties for Two Small Businesses; Fact Sheet Updated – OCAHO reduced I-9-related penalties substantially for two small restaurants. Also, the EOIR updated its fact sheet on OCAHO.

5. State Dept. Updates Visa Reciprocity Tables – Among other things, the Department recently updated the document section for Somalia.

6. USCIS Extends TPS for Somalis – Current Somali beneficiaries seeking to extend their TPS status must re-register by December 31, 2013.

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. Infosys Settles Visa Fraud and Abuse Case for Record $34 Million

Infosys Limited, an Indian company involved in consulting, technology and outsourcing, has agreed to pay a record $34 million civil settlement based on allegations of systemic visa fraud and abuse of immigration processes, and also agreed to enhanced corporate compliance measures. The $34 million payment made by Infosys as a result of these allegations represents the largest payment ever levied in an immigration case, U.S. Immigration and Customs Enforcement (ICE) announced.

ICE noted that Infosys is located in 30 countries and in 17 U.S. cities, including a location in Plano, Texas. The Plano location is responsible for handling the immigration practices and procedures for U.S. operations of Infosys. Infosys brings foreign nationals into the United States to perform work and fulfill contracts with its customers under two visa classification programs relevant to this case: H-1B and B-1.

ICE said that, among other things, Infosys fraudulently used B-1 visa holders to perform jobs involving skilled labor that were instead required to be performed by U.S. citizens or legitimate H-1B visa holders. ICE accused Infosys of directing B-1 visa holders to deceive U.S. consular officials, including a “do’s and don’ts” memorandum that instructed B-1 foreign nationals not to mention activities that “sound like work” or anything about contract rates. ICE also noted that Infosys failed to maintain I-9 records for many of its foreign nationals in the United States in 2010 and 2011, including failing to update and re-verify the employment authorization status of a large number of its foreign employees.

In addition to the $34 million payment, the settlement requires Infosys to conduct additional auditing for I-9 forms and meet a reporting requirement for B-1 usage, among other things.

David M . Marwell, special agent in charge of Homeland Security Investigations in Dallas, said: “This settlement against Infosys is the largest immigration fine on record. The investigation indicated that Infosys manipulated the visa process and circumvented the requirements, limitations, and governmental oversight of the visa programs. The investigation also showed that more than 80 percent of Infosys’s I-9 forms for 2010 and 2011 contained substantive violations. Ultimately, these actions by Infosys cost American jobs and simultaneously financially hurt companies that sought to follow the laws of this nation. Companies that misuse the visa process can expect to be scrutinized and held accountable.”

SETTLEMENT AGREEMENT

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2. Office of Foreign Labor Certification Deals With Backlogs After Shutdown

The Department of Labor’s Office of Foreign Labor Certification (OFLC) has experienced backlogs as a result of the cessation of its electronic systems due to the recent federal government shutdown. OFLC noted that this further resulted in a backlog of documents submitted to OFLC during that period by mail, hand-delivery, or email. As a result, OFLC has implemented the following temporary changes:

1. Submissions mailed, couriered, or emailed to OFLC and received between October 1 and October 18:

Submissions are applications that the National Processing Centers (Chicago, Atlanta, or Prevailing Wage Center) could not receive electronically through the iCERT system during the shutdown, and were mailed, delivered by private courier (Federal Express, etc.) or emailed to OFLC. These include Applications for Permanent Employment Certification (PERM, ETA 9089), Applications for Temporary Employment Certification (H-2B, H-2A ETA 9142), and Applications for Prevailing Wage Determinations (ETA 9141).

Because of the backlog in submissions that were mailed, delivered or emailed to OFLC for shutdown-related reasons or otherwise, all submissions received by OFLC between October 1 and October 18 will be considered received on October 18. For example, a PERM application mailed to the Atlanta National Processing Center on October 5 will be given a receipt date of October 18, 2013. If an October 18 receipt date on an application would otherwise render out-of-date the recruitment or prevailing wage determination used for the application, the application will be deemed to have been timely filed for the purpose of the recruitment or the prevailing wage determination.

2. PERM and H-2B submissions with time-sensitive recruitment or prevailing wage determinations NOT mailed or delivered to OFLC during the shutdown:

Employers that decided not to mail or deliver PERM or H-2B submissions to OFLC because of the shutdown may now have recruitment or prevailing wage determinations that are out-of-date because of the shutdown-related delay. These employers may now mail or file electronically in PERM or iCERT (see note below about iCERT filing) submissions for receipt NO LATER THAN November 14, 2013. This accommodation applies only to PERM and H-2B applications that had timely recruitment or prevailing wage determinations during the shutdown period and are now unsuitable for filing due to expired recruitment or prevailing wage determinations. Employers with time-sensitive recruitment or prevailing wage determinations who delayed their filings until after October 18, 2013 will be deemed to have been timely filed for the purpose of the recruitment or the prevailing wage determination. For mailed submissions, please include a pink sheet of paper as a cover page for the submission and label that cover sheet as a “shutdown pre-empted submission” so that it is properly handled in our mailrooms.

Note for PERM and H-2B iCERT filers: PERM and H-2B applications with out-of-date recruitment or prevailing wage determinations may also be submitted electronically. The system will warn the user that the application contains information that will cause the application to be denied, but such an application will not be denied for this reason. As with PERM and H-2B submissions with out-of-date recruitment or prevailing wage determinations that are mailed, no application with expired recruitment or expired prevailing wage determinations will be accepted after November 14, 2013.

3. Employer responses to OFLC directives that were due between October 1 and October 18, 2013 but were NOT transmitted to OFLC:

In the H-2A, H-2B and PERM programs, some employers may have been directed by OFLC to respond by a deadline that occurred from October 1, 2013 to October 18, 2013. Responses that were due to the OFLC during this period but NOT transmitted will have their due dates extended to November 14, 2013. The deadline extension applies to the following documents in the following programs:

For Prevailing Wage Determinations:

• Responses to Requests For Information

In H-2A and H-2B:

• Responses to Notices of Deficiencies or Requests for Further Information
• Audit Responses
• Responses to Notices of Intent to Debar

In PERM:

• Responses to information requests related to employer sponsorship
• Audit/AAIR responses
• Responses to Requests For Information
• Responses to requests for review of advertisements in supervised recruitment
• Responses to supervised recruitment (Recruitment Instructions Letters)
• Responses to Notices of Intent to Revoke or to Debar

4. Employer responses to OFLC directives that were due between October 1 and October 18, 2013 and were transmitted to OFLC during that period:

Responses to OFLC directives in the H-2A, H-2B and PERM programs (those noted in no. 3 above) that were due between October 1 and October 18, 2013, and were transmitted via mail, hand-delivery or email during that time will be considered received on October 18 and timely.

If an applicant transmitted an application or response by mail, hand-delivery or email between October 1 and October 18, 2013, and the employer has not received notice that the transmission was undeliverable, the employer should NOT re-submit it.

Employers are reminded that if they view a PERM application as erroneously denied during this period based on out-of-date recruitment, they may submit the request for reconsideration to the attention of the government error queue.

None of the temporary procedures established in this notice apply to appeals to the BALCA. Employers are encouraged to contact the BALCA for information related to deadlines applicable to appeals.

NOTICE

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3. Visa Office Forecasts Changes in Some Employment Cut-Off Dates

The Department of State’s Visa Office has projected changes in some employment cut-off dates. The December 2013 Visa Bulletin notes that the India employment second and third preference category cut-off dates advanced very rapidly at the end of fiscal year 2013. Those movements were based on the availability of thousands of “otherwise unused” numbers that could be made available without regard to the preference per-country annual limits. This has resulted in a dramatic increase in applicant demand, the Visa Bulletin notes. Consequently, the Visa Office has retrogressed those cut-off dates for December “in an effort to hold number use within the numerical limits.”

In the coming months, the Visa Office expects the employment first preference category to remain Current, and the employment second preference worldwide category to remain Current. The employment second preference category for China is expected to move forward three to five weeks. No forward movement is expected in the India second preference category.

The worldwide employment third preference category cut-off date has advanced extremely rapidly during the past seven months “to generate new demand,” the Visa Bulletin states. As the rate of applicants whose cases are finalized increases, it could have a significant effect on the cut-off date. Rapid forward movement of this cut-off date “should not be expected to continue beyond February,” the Visa Bulletin notes.

China’s and Mexico’s employment third preference cut-off dates are expected to remain at the worldwide date. India should see no forward movement and the Philippines is expected to move forward three to six weeks.

The employment fourth and fifth preference cut-off dates are expected to remain Current. The Visa Office noted that these projections are “what is likely to happen during each of the next few months based on current applicant demand patterns.” However, the Visa Office cautioned that these trends are not guaranteed and corrective action could be required at some point to maintain number use within the applicable annual limits. Unless indicated, the Visa Office said that those categories with a Current projection in the December Visa Bulletin “will remain so for the foreseeable future.”

VISA BULLETIN FOR DECEMBER 2013

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4. OCAHO Substantially Reduces Penalties for Two Small Businesses; Fact Sheet Updated

In U.S. v. Red Bowl of Cary, LLC, the Executive Office for Immigration Review’s (EOIR) Office of the Chief Administrative Hearing Officer (OCAHO) reduced fines for Red Bowl of Cary, doing business as Red Bowl Asian Bistro in North Carolina, for Form I-9 violations. OCAHO also reduced fines for a small family business in a similar case, U.S. v. Kobe Sapporo Japanese, Inc. EOIR also recently updated its fact sheet on OCAHO.

Red Bowl case. U.S. Immigration and Customs Enforcement (ICE) investigated Red Bowl, which had 23 active employees, in 2011. The restaurant manager advised ICE that its I-9 employment authorization forms were filled out after ICE issued its Notice of Inspection and that he and Red Bowl’s president were unaware of the requirement to use the form. ICE sought penalties totaling $21,505. Red Bowl argued that the penalty was both inappropriate and excessive.

OCAHO noted that the minum penalty for paperwork violations is $110 and the maximum is $1,100. In assessing an appropriate penalty, OCAHO noted, the following factors are considered: (1) the size of the employer’s business, (2) the good faith of the employer, (3) the seriousness of the violations, (4) whether the individual was an unauthorized alien, and (5) the history of previous violations. OCAHO observed that the law neither requires that equal weight be given to each factor nor rules out consideration of additional factors.

Potential penalties for the 23 violations in this case ranged from $23,509 to $25,300, OCAHO noted. Instead of focusing on the completion of its I-9 forms, Red Bowl noted that it exercised reasonable care to refrain from hiring unauthorized aliens and had never done so. Red Bowl said that its conduct may have been negligent but that its violations were less serious than, for example, an intentional falsification of forms or a refusal to fill them out. Red Bowl argued that the fines were unduly punitive in light of a statutory analysis showing no aggravating factors. The restaurant noted that even in a worst-case scenario, where a large company willfully disregarded its obligations, falsified I-9 forms, employed unauthorized workers, and had a history of previous violations, the penalty would still be only $3,794.45 more than what the government sought here. Red Bowl also noted that the proposed penalty represented 16% of its income for the tax year 2011 and would create undue hardship. Red Bowl argued that a more appropriate penalty would be $110 for each violation, or a total of $2,530. The restaurant also requested a schedule permitting payment over a six-month period.

OCAHO noted that Red Bowl had not employed any unauthorized aliens and had no history of previous violations, so the only negative factor was the seriousness of the violations. OCAHO said that an employer’s failure to prepare a timely I-9 form for an employee is a serious violation because it may permit an unauthorized individual to maintain unlawful employment. OCAHO acknowledged that 16% of the restaurant’s income appeared excessive in light of the record, noting that a penalty “needs to be sufficiently meaningful to acocmplish the purpose of deterring future violations” but “should not be unduly punitive in light of the respondent’s resources.” OCAHO said that penalties very close to the maximum permissible “should be reserved for the most egregious violations,” noting a “general public policy of leniency toward small entities.” OCAHO adjusted the penalty amount to “an amount closer to the midrange,” for a total penalty of $10,350. OCAHO said that a payment schedule could be established “to minimize the impact of the penalty on the operations of the restaurant.”

Kobe Sapporo Japanese case. In a similar case, U.S. v. Kobe Sapporo Japanese, Inc., ICE alleged that the company, a small family-owned restaurant in North Carolina, failed to ensure that its 26 workers properly completed various sections of the I-9 form. The complaint sought penalties totaling $29,452.50. OCAHO noted that an employer’s financial health, the economy, the employer’s ability to pay the fine, and the potential effect of the fine on the company are all appropriate additional factors to be considered. Penalties are not intended to cause employees to lose their jobs or to force employers out of business, but rather to enhance the probability of future compliance, OCAHO said, reducing the total amount of the penalties to $15,400.

Both cases were decided on October 18, 2013.

RED BOWL DECISION

KOBE SAPPORO JAPANESE DECISION

Fact sheet updated. EOIR also updated its OCAHO fact sheet on October 1, 2013. The fact sheet explains what OCAHO does; the types of cases it hears; and how it receives cases related to employer sanctions, document fraud, and unfair immigration-related employment practices, including the typical steps in how a case proceeds.

OCAHO DECISIONS

FACT SHEET

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5. State Dept. Updates Visa Reciprocity Tables

The Department of State has updated the visa reciprocity tables. Among other things, the Department recently updated the document section for Somalia; updated police records information for Croatia; and added same-sex marriage certificate information for South Africa and Spain.

TABLES

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6. USCIS Extends TPS for Somalis

Acting Secretary of Homeland Security Rand Beers has extended temporary protected status (TPS) for eligible nationals of Somalia for an additional 18 months, effective March 18, 2014, through September 17, 2015.

Current Somali beneficiaries seeking to extend their TPS status must re-register during a 60-day period that began on November 1, 2013, and runs through December 31, 2013. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible. USCIS did not accept applications it received before November 1, 2013.

The 18-month extension also allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible Somali TPS beneficiaries who re-register during the re-registration period and request work authorization will receive a new EAD that expires on September 17, 2015.

To re-register, current TPS beneficiaries must submit Form I-821, Application for Temporary Protected Status. Re-registrants do not need to pay the I-821 application fee, but they must submit the biometric fee, or a fee-waiver request, if they are age 14 or older. All TPS re-registrants must also submit Form I-765, Application for Employment Authorization, but no I-765 application fee is required if the re-registrant does not want an EAD. TPS re-registrants requesting an EAD must submit the I-765 application fee, or a fee-waiver request.

Applicants may request that USCIS waive any or all fees based on inability to pay by filing Form I-912, Request for Fee Waiver, or by submitting a written request. Fee-waiver requests must be accompanied by supporting documentation. Failure to submit the required filing fees or a properly documented fee-waiver request will result in the rejection of the TPS application, USCIS noted.

ADDITIONAL INFORMATION ON TPS FOR SOMALIA

Further details on this extension of Somalia for TPS, including application requirements and procedures, are available in the FEDERAL REGISTER NOTICE.

A correction to the Federal Register notice amending the dates of the re-registration period was published HERE.

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7. New Publications and Items of Interest

SAVE video. The Systematic Alien Verification for Entitlements (SAVE) program has produced a short video to help applicants understand SAVE’s immigration status verification process. The video explains how SAVE functions to help many local, state, and federal government agencies verify immigration status. It shows steps applicants can take to help ensure that the SAVE verification process goes smoothly and reviews SAVE’s new service for benefit applicants, SAVE Case Check. SAVE suggests that user agencies and other stakeholders play the video in their waiting rooms and common areas so that benefit applicants can view it, and consider adding the link to websites. The five-minute video is available for download HERE.

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

Steve Clark addressed the Massachusetts Bar Association on November 14, 2013, on EB-5: The Nuts and Bolts of an EB-5 Case.

H. Ronald Klasko wrote “Perspectives on the China Market: Part 2”

Charles Kuck has published a new blog entry. “Believing and Being an Immigration Lawyer” “Why Is My DACA Case Pending So Long?”

Mr. Kuck was a finalist for the Distinguished Service Award given by the Georgia Restaurant Association.

Gunther Mävers will speak at the 6th Biennial Global Immigration Conference, to be held November 20-22, 2013, at the May Fair Hotel in London, England. The conference is presented by the International Bar Association’s Immigration and Nationality Law Committee.

Cyrus Mehta has published a new blog entry. “The Ambiguous B-1 Visa: Lessons Learned From the Infosys Settlement

Angelo Paparelli has authored or co-authored several new blog entries. “Four Post-Infosys Strategies for Corporate Customers and Consultants To Minimize Immigration Risks” “Immigration Voices: ‘Visa Now Needed for U.S. Citizens To Enter the Beltway?’ ”

Bernard Wolfsdorf will speak on U.S. Investor and Entrepreneur Programs on Thursday, November 21, 2013, at the Global Residence and Citizenship Conference at the Shangri-La Oriental Hotel in Miami, Florida.

Mr. Wolfsdorf will host a free webinar on EB-5 Hot Topics on November 19, 2013. MORE INFORMATION OR TO REGISTER.

Stephen Yale-Loehr co-wrote “A Cumulative Analysis of What USCIS Looks For in EB-5 I-829 RFEs and Denials”

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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. DOS Releases Info on Cut-Off Date Calculations; November 2013 Visa Bulletin Shows Movement in China ‘Other Workers’ Category – DOS has released information about how it calculates visa availability cut-off dates. Separately, the Visa Office has released the latest November 2013 Visa Bulletin.

2. EOIR Issues Guidance on Immigration Court Filings During Government Shutdown – During the lapse in government funding, the operating status of each immigration court is categorized in one of three ways.

3. Congress Extends Special Immigrant Visa Program for Iraqis – Visas may be issued to principal applicants until December 31, 2013.

4. FY 2014 Limit Set for CNMI-Only Transitional Workers – DHS has announced a limit of 14,000 nonimmigrants for FY 2014 for CNMI-Only Transitional Workers.

5. SEVP Seeks Feedback on Draft Guidance re Vacations, Temporary Absences, and Timely Filings – The program is accepting feedback on draft guidance regarding vacations, temporary absences, and timely filings.

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

7. Member News – Member News

8. Government Agency Links – Government Agency Links

Details:

1. DOS Releases Info on Cut-Off Date Calculations; November 2013 Visa Bulletin Shows Movement in China ‘Other Workers’ Category

The Department of State (DOS) recently released information about how it calculates visa availability cut-off dates. Separately, the Visa Office has released the latest November 2013 Visa Bulletin, which explains additional points and notes forward movement in the China employment-based third preference “Other Workers” category.

Visa availability calculations. DOS explained that each month, its Visa Office subdivides the annual preference and foreign state limitations into monthly allotments based on totals of documentarily qualified immigrant visa applicants reported at consular posts and U.S. Citizenship and Immigration Services offices, grouped by foreign state chargeability, preference category, and priority date. If there are sufficient numbers in a particular category to satisfy all reported documentarily qualified demand, the category is considered “Current.” For example, if the monthly allocation target is 3,000 and there is only demand for 1,000 applicants, the category will be Current. Whenever the total of documentarily qualified applicants in a category exceeds the supply of numbers available for allotment for the particular month, the category is considered to be “oversubscribed” and a visa availability cut-off date is established. The cut-off date is the priority date of the first documentarily qualified applicant who could not be accommodated for a visa number. For example, if the monthly target is 3,000 and there is demand for 8,000 applicants, it would be necessary to establish a cut-off date so that only 3,000 numbers would be allocated. In this case, the cut-off would be the priority date of the 3,001st applicant.

The DOS noted that the FY 2013 employment annual limits were reached before the end of September, and no further allocation of numbers was possible after that time. Offices continued to process employment cases, submitted them in the normal manner, and such cases were then held in the Visa Office’s “Pending Demand” file. All eligible cases were then allocated employment-based numbers on October 1, 2013, under the FY 2014 annual limits.

DOS said that the number of I-485 adjustment of status applications already filed in the employment third preference (on which U.S. Citizenship and Immigration Services (USCIS) has not yet finalized action) for countries other than India and the Philippines exceed the numbers currently available. These filings are the result of the cut-off dates for those countries having been advanced by over three years since April. DOS said that such demand must be considered in the determination of the monthly cut-off dates to prevent any unnecessary fluctuation in those dates.

The imposition of cut-off dates for some categories/countries has limited the number of applicants who have been able to file for adjustment of status with USCIS, and such applicants would not be included in the totals, DOS noted. In addition, new applicants are constantly becoming eligible for processing in categories for which cut-off dates do not apply, or for a category other than that in which they initially filed for status.

Therefore, DOS said that the totals in the Visa Bulletin charts should not be interpreted to reflect the total universe of applicant demand. These totals only represent the amount of demand taken into consideration during the determination of new dates.

Visa Bulletin. The Visa Office noted in its November 2013 Visa Bulletin that:

It is important to remember that the establishment of a monthly cut-off or “Current” status for a numerically controlled category (preference or Diversity [Visa]) applies to those applicants who were reported prior to the allocation of visa numbers for that month. For example, all qualified applicants who were reported to the Visa Office in time to be included in the calculation of the September cut-offs, who had a priority date or rank-order number before the relevant September cut-off, would have been allotted visa numbers for September. There would be no expectation, however, that sufficient numbers would be available for the processing of cases which subsequently became eligible for final action during that month. Additional numbers may be allocated outside the regular monthly cycle, but only to the extent that such numbers remain available under the applicable annual limit. The availability of additional numbers is subject to change at any time and should never be taken for granted. This is especially true late in the fiscal year when numerical allocations are often close to or at the annual limits.

When applicants fail to appear or overcome a refusal (even for reasons beyond their control) during the original month of scheduled interview, they risk not having their case processed later in the fiscal year. This is because the establishment of a monthly cut-off or “Current” status for a numerically controlled category (preference or Diversity Visa) applies to those applicants who were reported before the allocation of visa numbers for that month.

Employment-Based Third Preference:

China: Rapid forward movement of the cut-off date, as a result of there being insufficient demand to use all available numbers, allowed the category to reach the Worldwide third preference cut-off date in May 2013. The continued lack of demand has allowed the “otherwise unused” numbers available under that limit to be provided for use in the China employment third preference Other Workers category. The continued addition of those numbers has allowed the cut-off date for that category to reach the China third preference date for November. This is the same action which has been possible for the Other Worker category in other “oversubscribed” countries such as India and Mexico. A sudden increase in demand for China employment third preference visas could require corrective action in the China Other Worker cut-off date at any time.

The DOS’s information includes charts showing the estimated total number of visas available for each employment preference category and country for fiscal year 2014. Demand data used in the determination of the November 2013 employment preference cut-off dates are also included in the charts.

INFORMATION

VISA BULLETIN FOR NOVEMBER 2013

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2. EOIR Issues Guidance on Immigration Court Filings During Government Shutdown

The Department of Justice’s Executive Office for Immigration Review (EOIR) issued guidance on October 9, 2013, about how to handle immigration court filings during the U.S. government shutdown.

There are several types of deadlines for filings before an immigration court, EOIR noted. Some exist in statutes and regulations, and others are contained in Section 3.1 of the Immigration Court Practice Manual (ICPM). An immigration judge may set specific deadlines in a given case, whether or not the respondent is detained.

EOIR explained that during the lapse in government funding, the operating status of each immigration court is categorized in one of three ways: “Open,” “Open to hear detained cases only,” and “Closed.” As a general matter, immigration courts that have a docket consisting primarily of detained cases are designated as “Open” and are accepting filings at the window and by mail. Deadlines relating to cases before courts designated as “Open” are effective even during the lapse in funding as the adjudication of these cases moves forward, EOIR explained.

A second group of courts, which hear both detained and non-detained cases, are referred to as “Open to hear detained cases only.” Deadlines relating to detained cases before these courts are effective during the lapse in funding, and filings related to such cases are being accepted at the window and by mail. Filings relating to non-detained cases at these courts also will be accepted at the filing window or by mail and date-stamped, but will not be processed further during the lapse in funding. In addition, motions for extension of filings deadlines pursuant to section 3.1(c)(iv) of the ICPM will be accepted for non-detained cases, but decisions on such motions might not occur until the government receives funding for fiscal year 2014.

For non-detained cases pending before court locations designated as “Closed,” filings currently are not being accepted at the window and no court staff is processing mail, EOIR said. Decisions on how non-detained cases will be rescheduled and how filings related to those cases will be considered will be made once the government reopens. If motions for extension of filings deadlines pursuant to section 3.1(c)(iv) of the ICPM are submitted by mail, decisions on such motions will not occur until the government receives funding for fiscal year 2014.

NOTICE

LISTING OF IMMIGRATION COURTS AND THE OPERATING STATUS OF EACH COURT

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3. Congress Extends Special Immigrant Visa Program for Iraqis

Congress has extended, and President Barack Obama has signed, legislation (H.R. 3233) extending the Special Immigrant Visa (SIV) program for Iraqi nationals who worked for or on behalf of the U.S. government. The President signed the legislation on October 4, 2013.

The law extends the authority of the Department of State (DOS) to issue SIVs to Iraqi nationals under the National Defense Authorization Act of 2008 until December 31, 2013. Visas may be issued to principal applicants under this program until that date. Approved visas are not affected by the end of the program.

The SIV program that has been extended covers Iraqi nationals who, between March 20, 2003, and September 30, 2013, were employed by or on behalf of the U.S. government in Iraq for a period of at least one year. The program had expired with respect to principal applicants on September 30, 2013, but has now been extended. The extension permits USCIS to approve petitions or applications for visas or adjustment of status to lawful permanent residence in any eligible Iraqi SIV case that were pending with USCIS or with DOS when the program expired on September 30, 2013. USCIS may also approve an additional 2,000 cases as long as the initial applications to the DOS Chief of Mission in Iraq are made by December 31, 2013.

Also, DOS’s authority to issue Special Immigrant Visas to Afghan nationals expires on September 30, 2014. DOS said it welcomes any actions by Congress to extend the Afghan SIV program and to further extend the Iraqi SIV program. “Across the U.S. government, every effort is being made to ensure qualified applicants are processed in a timely fashion before the Iraqi and Afghan programs’ scheduled end dates,” DOS said. It is unclear how the government shutdown may be affecting processing.

The authority to grant derivative SIV status to spouses and children of principal Iraqi SIVs did not sunset on September 30, 2013, and is not numerically capped.

USCIS ANNOUNCEMENT

DEPARTMENT OF STATE’S ANNOUNCEMENT

Information on a separate extension for translators/interpreters in Iraq or Afghanistan who worked with the U.S. Armed Forces or under Chief of Mission authority is available HERE.

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4. FY 2014 Limit Set for CNMI-Only Transitional Workers

The Department of Homeland Security (DHS) has announced a limit of 14,000 nonimmigrants for fiscal year (FY) 2014 for the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) program.

Under the CW-1 program, employers in the CNMI can apply for temporary permission to employ foreign nationals who are ineligible for any existing employment-based nonimmigrant category. The CW program is in effect until December 31, 2014. Before that date, the CNMI’s nonresident worker program is being transitioned to the U.S. federal immigration system. This transition period was established by the Consolidated Natural Resources Act of 2008 (CNRA), which extended, for the first time, most provisions of U.S. immigration law to the CNMI.

The annual CNRA-required reduction in CW-1 workers will eliminate the CW nonimmigrant classification by the end of the transition period. DHS set the CW-1 limit for FY 2014 at 14,000 to meet the CNMI’s existing labor market needs and provide opportunity for potential growth, while meeting a CNRA requirement to reduce the numerical limit each year. The CW program will end on December 31, 2014, unless it is extended by the DOL.

U.S. Citizenship and Immigration Services said this announcement does not affect the status of current CW-1 workers unless their employers file for extensions of their current authorized periods of stay or they seek to change CW-1 employers. Approved petitions that request a work-start date in FY 2014 (between October 1, 2013, and September 30, 2014) will count toward the 14,000 limit. The numerical limit applies only to CW-1 principals, USCIS noted. It does not directly affect persons currently holding CW-2 status, which is for spouses and minor children of CW-1 nonimmigrants. However, CW-2 nonimmigrants may be indirectly affected because their status depends upon that of the principal CW-1.

A numerical limit of 15,000 CW-1s was set for FY 2013. As of August 13, 2013, employers in the CNMI filed petitions for at least 7,323 transitional workers.

USCIS ANNOUNCEMENT

DHS FEDERAL REGISTER NOTICE

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5. SEVP Seeks Feedback on Draft Guidance re Vacations, Temporary Absences, and Timely Filings

The Student and Exchange Visitor Program (SEVP) periodically requests feedback from the public on draft guidance affecting F and M students. The program is accepting until October 23, 2013, feedback on guidance regarding vacations, temporary absences, and timely filings:

• Vacations: This document gives the SEVP interpretation of the F-1 student annual vacation regulation to guide adjudicators
• Temporary absences: This document gives SEVP’s interpretation of the temporary absence regulation to guide adjudicators and addresses the concept of authorized early withdrawal as it relates to temporary absence
• Timely filings: SEVP notes that it is committed to the use of electronic reporting technology. Communications between SEVP and the academic community that previously depended upon the U.S. Postal Service and private-sector delivery companies are now conducted solely through electronic means. This guidance adjusts the allowable time for school officials and those who represent the schools to respond to SEVP notices

Links to the draft guidance listed above are available in SEVP’s NOTICE. The e-mail address for submitting feedback is [email protected](include the title of the guidance in the subject line).

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6. New Publications and Items of Interest

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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7. Member News

Laura Danielson will speak on Chinese nationality laws at the Union Internationale Des Avocats’ 57th Congress Conference to be held October 31 to November 4, 2013, in Macau, China.

Ms. Danielson will speak on the following topics:

• “Proving Lawful Source of Funds as an Immigrant Investor,” at the 2013 Investment Immigration Summit to be held November 11-12, 2013, in Hong Kong SAR.
• Hot topics in Chinese immigration laws, at the 6th Biennial International Bar Association’s Immigration and Nationality Law Conference to be held on November 21-22, 2013, in London, England.
• Chinese nationality laws, at the Union Internationale Des Avocats 57th Congress Conference to be held October 31 to November 4, 2013 in Macau.

Rami Fakhoury and Robert Loughran presented an update on September 13, 2013, on “Tackling the Latest L-1 Challenges” to the technology companies that form The Texas Immigration Coalition in Dallas, Texas.

H. Ronald Klasko recently spoke at the 46th Annual Immigration & Naturalization Institute in New York City. Mr. Klasko presented “Challenges to Entrepreneurs Coming to the United States.”

Mr. Loughran presented a legislative and administrative update for FosterQuan’s semi-annual Immigration Update seminar in Austin, Texas, on October 10, 2013. Topics included breaking news in immigration, global visa options, how to navigate PERM challenges, and Form I-9 and E-Verify compliance.

Mr. Loughran will be a panelist on “The Future Workforce” at the 2013 InnoTech Austin, Technology & Innovation Conference to be held October 16, 2013.

Mr. Loughran will present to potential foreign investors in Israel on October 21-22, 2013, as a part of the Texas One delegation, which highlights Texas as a destination for economic development. His presentation will focus on what to expect when facing immigration challenges while investing in the United States.

Mr. Loughran will be a panelist at the Worldwide ERC Conference in Dallas, Texas, on October 24-25, 2013. Mr. Loughran will share his expertise on global immigration as it pertains to China.

Cyrus Mehta has published a new blog entry. “Delays for Overseas Spouses of U.S. Citizens Seeking Green Cards“.

Pearl Law Group won the Bronze Stevie® Award in the 2013 International Business Awards for “Most Innovative Company of the Year” in North America. The firm was considered among more than 3,300 nominees in more than 50 nations.

Julie Pearl will be a panelist for a session, “Managing Global Business Traveler Compliance,” at the Worldwide ERC Global Workforce Symposium in Dallas, Texas, on October 24, 2013.

Ms. Pearl will also speak on Extended Business Travel at the November 8, 2013, meeting of the Southern California Relocation Council (SCRC) in Long Beach, California.

Bernard Wolfsdorf spoke on “Hot Topics in Immigration Law” at the American Bar Association’s YLD conference on October 11, 2013, at the Arizona Biltmore.

Mr. Wolfsdorf will speak on “Hot Topics in Immigration Law” at the 26th Annual American Immigration Lawyers Association’s California Chapters Conference on November 8, 2013, at the Anaheim Marriott.

Stephen Yale-Loehr was quoted in an article on MainJustice.com on October 8, 2013. In “Foreign Investor Visa Program May Pose FCPA Risks in China, Advisers Say,” Mr. Yale-Loehr noted that the EB-5 program has been around since 1991, but has recently expanded exponentially, particularly with the start of the recession in late 2007 and 2008. “Interest in the program has increased overseas, particularly in China, as backlogs for other kinds of visas have also increased,” he said.

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8. 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. Sends Guidance to Posts on New Electronic Immigrant Visa Application – The Department of State recently sent a cable to all diplomatic and consular posts providing guidance and describing the timeline for deployment of the new electronic DS-260 (Immigrant Visa Application) and DS-261 (Choice of Address and Agent).

2. USCIS Implements Identity Verification at Field Offices – The new tool allows applicants to submit biometric data (fingerprints and photographs) when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit. USCIS still requires applicants and petitioners requesting immigration or naturalization benefits to visit an Application Support Center to provide biometric data.

3. DACA Reaches One-Year Mark – 588,725 applications have been received so far. Of those, 567,563 were accepted and 21,162 were rejected.

4. Thousands Will Be Naturalized at Constitution Day and Citizenship Day Ceremonies – More than 18,000 new citizens will be naturalized during more than 180 ceremonies between September 16 and September 23.

5. Special Immigrant Visa Program for Iraqis To Expire – On September 30, 2013, the Special Immigrant Visa program for Iraqi nationals who worked for or on behalf of the United States government in Iraq will expire.

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

7. Member News – Member News

8. Government Agency Links – Government Agency Links

Details:

1. State Dept. Sends Guidance to Posts on New Electronic Immigrant Visa Application

The Department of State recently sent a cable to all diplomatic and consular posts providing guidance and describing the timeline for deployment of the new electronic DS-260 (Immigrant Visa Application) and DS-261 (Choice of Address and Agent), which replaces the paper-based DS-230 (Application for Immigrant Visa Registration, parts I and II) and the DS-3032 (Choice of Address and Agent). Worldwide use of the DS-260/261 took effect for new cases on September 1, 2013.

The cable notes, among other things, the availability of software that includes a “biometric oath module” allowing posts to record an electronic fingerprint in lieu of a written signature attesting to the oath administered before every immigrant visa interview.

The cable states that the Department intends to deploy the DS-260/261 as follows:

• Beneficiaries submitting new cases that arrive at the National Visa Center (NVC) from U.S. Citizenship and Immigration Services (USCIS) on or after September 1 will be instructed to complete the DS-260/261 in lieu of the DS-230/3032. The State Department will update travel.state.gov to reflect this guidance and will remove the PDF versions of Forms DS-230 and DS-3032 from public circulation. If a beneficiary submits a DS-230, NVC will instruct him or her to re-submit a DS-260.
• The State Department will not require DS-260s for beneficiaries of “pipeline” cases already in process at NVC on September 1 if: 1) the case has already been documentarily qualified and sent to scheduling, or 2) NVC receives a single submission of documents that makes a case documentarily qualified. For all other pipeline cases where NVC has occasion to send a “checklist” of missing documents after September 1, NVC will instruct petitioners/agents/beneficiaries to submit the DS-260 along with those missing documents, even if a DS-230 was already on file.
• Those filing petitions locally overseas (with either USCIS or a consular section) on or after September 1 must submit a DS-260 once the petition is approved. Posts should instruct beneficiaries to enter the principal applicant’s DOB in YYYYMMDD format in lieu of an “Invoice ID” on the DS-260 login page.
• For cases filed locally overseas before September 1, if beneficiaries have already submitted a DS-230 or received instruction to do so, the consular post should accept the DS-230. If a consular post has not yet provided beneficiaries instructions on how to submit their applications, the post must require the DS-260. The consular post should not, as a general rule, require the submission of a DS-260 if a valid, signed, unexpired DS-230 is already on file and requiring the DS-260 would result in a 221(g) refusal for an otherwise issuable case.
• For Havana Only: Cuban Family Reunification Parole (CFRP) cases are the lone exception to the scenarios described above. The DS-260 will not allow an applicant whose case is not current to access the DS-260. For now, NVC will continue to solicit and accept Form DS-230 from applicants who opt in to the CFRP program.

FREQUENTLY ASKED QUESTIONS

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2. USCIS Implements Identity Verification at Field Offices

U.S. Citizenship and Immigration Services (USCIS) has begun employing “Customer Identity Verification” (CIV) in its domestic field offices. The tool allows applicants to submit biometric data (fingerprints and photographs) when appearing at USCIS offices for interviews or to receive evidence of an immigration benefit. It will be phased in between September 9 and October 21, 2013.

After an applicant arrives at a field office, clears security, and is called to the counter, USCIS will electronically scan two fingerprints and take a picture to verify identity. The process takes a few minutes and applies only to those who have an interview or are receiving evidence of an immigration benefit. Those who come to a USCIS office for InfoPass appointments or to accompany an applicant will not undergo this process.

Currently, USCIS requires applicants and petitioners requesting immigration or naturalization benefits to visit an Application Support Center (ASC) to provide biometric data. “This requirement, along with providing a government-issued document for examination, will not change,” USCIS said.

CIV connects instantly to the United States Visitor and Immigrant Status Indicator Technology’s (US-VISIT) Secondary Inspections Tool (SIT). SIT is a Web-based application that processes, displays, and retrieves biometric and biographic data. US-VISIT also links databases associated with border inspections and security.

ANNOUNCEMENT

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3. DACA Reaches One-Year Mark

The Deferred Action for Childhood Arrivals (DACA) started on August 15, 2013. One year later, the numbers for August 2013 show that a total of 588,725 applications have been received. Of those, 567,563 were accepted and 21,162 were rejected. The average number of applications accepted per day is 2,158.

REPORT

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4. Thousands Will Be Naturalized at Constitution Day and Citizenship Day Ceremonies

U.S. Citizenship and Immigration Services announced that it plans to naturalize more than 8,000 candidates on September 17, 2013, which is Constitution Day and Citizenship Day. More than 18,000 new citizens will be naturalized during more than 180 ceremonies between September 16 and September 23. The event commemorates the signing of the U.S. Constitution in 1787.

LIST OF CEREMONY LOCATIONS AND DATES

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5. Special Immigrant Visa Program for Iraqis To Expire

On September 30, 2013, the Special Immigrant Visa (SIV) program for Iraqi nationals who worked for or on behalf of the United States government in Iraq will expire.

The program covers Iraqi nationals who have been employed by or on behalf of the United States government in Iraq for at least one year, from March 20, 2003, to the present. The expiration date does not apply to spouses and unmarried children who are following to join a principal applicant.

The Iraqi SIV program will expire on September 30 at 11:59 p.m. EDT unless Congress extends the program. After that date, USCIS will reject any Form I-360, Petition for Amerasian, Widow(er), or Special Immigrant, or Form I-485, Application to Register Permanent Residence or Adjust Status, filed by a principal applicant based on the Iraqi SIV program. Beginning on October 1, 2013, USCIS will suspend processing of any pending I-360 or I-485 filed by a principal applicant based on the Iraqi SIV program.

ANNOUNCEMENT

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6. New Publications and Items of Interest

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].

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012. The writer, Saundra Amrhein, was nominated as a finalist on the short list for the 2011 Santa Fe Writers Project Literary Awards. Green Card Stories is also featured on National Public Radio’s photo blog.

For more information, e-mail Lauren Anderson at [email protected]. See also the Green Card Stories website.

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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7. Member News

H. Ronald Klasko will discuss “What’s Next? EB-5 Trends and Developments” at the CDFA/IIUSA Intro EB-5 Finance WebCourse on September 19. Mr. Klasko will review trends and developments related to the EB-5 program and highlight important statistics to consider when using this form of financing. Topics to be discussed include capital and job formation, actions taking place at USCIS, the federal agency that administers the program, and legislative reforms that could affect the program. FOR MORE DETAILS OR TO REGISTER.

Mr. Klasko will visit the Wharton Business School of the University of Pennsylvania on Tuesday, October 8, 2013. He will discuss topics of interest to entrepreneurial business students.

Mr. Klasko presented at the Practising Law Institute’s 46th Annual Immigration & Naturalization Institute program in New York City on September 3, 2013. The topic was “Challenges to Entrepreneurs Coming to the United States.”

Mr. Klasko was a contributing author to the American Immigration Lawyers Association’s Immigration Practice Toolbox, 4th Edition (June 2013). The Toolbox contains a collection of articles, templates, samples, and updates to supplement a practitioner’s knowledge of immigration law.

Cyrus Mehta has published a new blog entry. “Can An Undocumented Lawyer Practice Immigration Law?”

Mr. Mehta was listed in Best Lawyers, ALM Martindale, Martindale AV Preeminent, and “Most Powerful” by HR Executive Magazine. A listing of other ABIL attorneys in these categories was published in the September 1, 2013, issue of the ABIL Immigration Insider.

Mr. Mehta spoke at the following recent events:

• “Ethics in Immigration Practice: Where Zealous Representation Starts and Ends,” Practising Law Institute, New York City, September 3, 2013
• “Ethical Issues In Removal Proceedings, Defending Immigration Removal Proceedings 2013,” Practising Law Institute, New York City, August 12, 2013
• “Careers in Immigration Law,” New York City Bar, Summer Series, July 18, 2013

Angelo Paparelli was quoted in a recent Wall Street Journal article about a new crackdown on undocumented workers. Mr. Paparelli said the U.S. government has slashed the time it gives employers to find and train replacement workers, to about 20 days from three to four months. The longer amount of time “avoided disrupting or closing the business.” He deems the new policy potentially a “deadly blow” to employers. A version of this article appeared September 13, 2013, on page B1 in the U.S. edition of the Wall Street Journal, with the headline: “New Hunt for Illegal Workers.”

Mr. Paparelli recently co-authored a new article, “Prosecutors, Aim Your Weapons—Targeting Fraud Upon Immigrants.”

Stephen Yale-Loehr was quoted in a recent Univision article about the complexity of the EB-5 program.

Mr. Yale-Loehr will speak on EB-5 immigrant investor issues on a webinar sponsored by the Council of Development Finance Agencies on September 18, 2013. Topics will include direct EB-5 vs. EB-5 regional center programs, minimum investment requirements, securities regulations, and business plans and economic reports. MORE DETAILS OR TO REGISTER

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8. 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 To Conduct I-9 Form Study – Following a study to be conducted in September, USCIS plans to propose a revised I-9 form and invite public comment.

2. State Dept. Releases Cable, FAQ on DOMA – The Department of State recently released a FAQ and a cable to the field, “Next Steps on DOMA—Guidance for Posts.”

3. USCIS Transfers Some Casework Within and Among Service Centers – USCIS recently began transferring some casework within and among service centers to balance workload processing capacity.

4. CBP Expands Global Entry to Republic of Korea, Germany, Qatar, United Kingdom – Global Entry kiosks are available at 34 U.S. airports and 10 CBP preclearance locations in Ireland and Canada that serve 98 percent of all incoming air travelers.

5. ICE SEVP No Longer Mailing Notices of Action for SEVIS Fee Payments – Payment confirmations the user can print from the fee website will replace the I-797C.

6. Eighth Circuit Finds Undocumented Workers Covered Under FLSA – Employers may not exploit undocumented workers’ status or profit from hiring such workers in violation of federal law.

7. India Second Preference Visa Cut-Off Date Advances; Significant New India Demand Expected in Coming Months – The India second preference cut-off date has advanced by more than three years.

8. State Dept. Revises B-2 Nonimmigrant Reciprocity Schedule for Cuba – The Department of State has revised the visa reciprocity schedule for Cuba for B-2 nonimmigrants, changing the validity from 6 months to 60 months.

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

10. Member News – Member News

11. Government Agency Links – Government Agency Links

Details:

1. USCIS To Conduct I-9 Form Study

U.S. Citizenship and Immigration Services (USCIS) is developing a new version of the I-9 employment eligibility verification form. USCIS plans to propose the revised form and invite public comment. The agency is selecting nine employers for a study to determine how much time it takes employers to complete the revised form.

The study will be administered at USCIS offices in Washington, -DC, on September 3, 2013; September 5, 2013; or September 6, 2013, between 8 a.m. and 5 p.m. USCIS announced on August 5, 2013, that interested employers, large and small, were invited to submit a request by August 15, 2013, to volunteer to participate in the study. USCIS said it would randomly selected four large employers and five small employers from all submissions received by the deadline.

USCIS said it will contact the selected employers by August 23, 2013, to schedule an appointment to participate in the study. At the study, the point of contact for the employer will be requested to play the role of an employer completing Section 2 and/or Section 3 of the Form I-9.

ADDITIONAL INFORMATION

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2. State Dept. Releases Cable, FAQ on DOMA

The Department of State recently released a FAQ and a cable to the field, “Next Steps on DOMA—Guidance for Posts.” The cable notes that beginning immediately, consular officers should review visa applications filed by same-sex spouses in the same manner as those filed by opposite-sex spouses, “unless a specific provision of the federal immigration laws requires a different approach.”

The cable notes that the Visa Office deleted a provision in the Foreign Affairs Manual that defined “marriage” for immigration purposes to mean “only a legal union between one man and one woman as husband and wife,” and the word “spouse” to mean only “a person of the opposite sex who is a husband or a wife.” A same-sex marriage is now valid for immigration purposes “as long as the marriage is recognized in the ‘place of celebration,'” the cable states. Such marriages are valid for immigration purposes “even if the couple intends ultimately to reside in one of the 37 states that do not recognize same-sex marriages. Same-sex marriages are valid “even if the applicant is applying in a country in which same-sex marriage is illegal.”

The Department is asking consular sections to identify what types of marriages are available for same-sex couples in-country and to update the visa reciprocity tables.

Also, the cable notes that beginning “immediately,” same-sex spouses and their children are equally eligible for nonimmigrant derivative visas. Same-sex spouses and their children (“stepchildren of the primary applicant when the marriage takes place before the child turns 18”) can qualify as derivatives where the law permits issuance of the visa to a spouse or stepchild without being named on a petition (or if a petition is not required). This includes Diplomat (A), Commonwealth of the Northern Mariana Islands transitional worker (CW), treaty trader/investor (E), international organization employee (G), temporary worker (H), information media representative (I), intracompany transferee (L), North Atlantic Treaty Organization (NATO), extraordinary ability (O), entertainer and athlete (P), religious worker (R), and North American Free Trade Agreement (TN – Trade National) visa categories. If an applicant is otherwise qualified, the cable states, “he/she may be issued a derivative visa starting now.”

Among other things, the cable also notes that many same-sex couples live abroad in countries where they are unable to marry. Starting immediately, same-sex partners of U.S. citizens may apply for fiancé(e) nonimmigrant K-1 visas to wed in the United States, the cable states. Once the union is contracted in a state permitting same-sex marriage, the foreign spouse may apply for adjustment to legal permanent resident status through U.S. Citizenship and Immigration Services (USCIS), or the U.S. citizen may file an I-130 with USCIS. A significant portion of same-sex partners intending to immigrate to the United States may use fiancé(e) visas, the cable notes.

THE CABLE, also includes talking points for posts responding to public and media inquiries

FAQ

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3. USCIS Transfers Some Casework Within and Among Service Centers

U.S. Citizenship and Immigration Services (USCIS) recently began transferring some casework within and among service centers “to balance workload processing capacity.” The affected casework includes, among others, the I-821D, Consideration of Deferred Action for Childhood Arrivals (with accompanying Form I-765, Application for Employment Authorization); I-751, Petition to Remove the Conditions on Residence; I-130, Petition for Alien Relative (F2A category for spouses and children of permanent residents); and I-129F, Petition for Alien Fiancé(e).

USCIS will send a notice to those whose cases were transferred listing the transfer date and where the case will be processed. The original receipt number will not change. When making any case status inquiries, affected persons should reference the original receipt number and indicate that the case was transferred to a new location.

USCIS noted, “If you have filed one of the affected form types and you receive a request for evidence or any other type of communication from USCIS, please read the notice carefully to ensure that you respond to the same service center that sent you the notice.”

Also, starting the week of July 29, 2013, USCIS began redirecting all newly filed I-129F forms from the Vermont Service Center to the Texas Service Center (TSC). The receipt notices will bear a TSC receipt number beginning with “SRC.” These cases will be processed by the TSC. The California Service Center will continue receiving I-129F forms.

NOTICE

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4. CBP Expands Global Entry to Republic of Korea, Germany, Qatar, United Kingdom

U.S. Customs and Border Protection published a Federal Register notice on August 9, 2013, expanding eligibility for participation in Global Entry to citizens from the Republic of Korea, Germany, Qatar, and the United Kingdom. Those participating in Korea’s Smart Entry System (SES), Germany’s Automated and Biometrics-Supported Border Controls (ABG) Plus, and select Qatar and United Kingdom citizens may be able to receive Global Entry benefits.

Additionally, the Federal Register notice announces the ability for current U.S. Global Entry members to apply for membership in the Republic of Korea’s SES program, and for a limited number to apply for Germany’s ABG Plus program.

Global Entry kiosks are available at 34 U.S. airports and 10 CBP preclearance locations in Ireland and Canada that serve 98 percent of all incoming air travelers. To become a member of Global Entry, interested individuals must fill out an online application, pay the $100 application fee, undergo a background investigation, and complete an interview with a CBP officer at a Trusted Traveler enrollment center, which includes submission of fingerprints. Upon approval, membership is valid for five years.

CBP noted that Global Entry “allows pre-approved, low-risk travelers the ability to bypass traditional CBP screening and use and automated kiosk to complete their entry into the U.S. upon arrival.”

NOTICE

FEDERAL REGISTER NOTICE

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5. ICE SEVP No Longer Mailing Notices of Action for SEVIS Fee Payments

U.S. Immigration and Customs Enforcement announced that as of July 31, 2013, the Student and Exchange Visitor Program (SEVP) is no longer mailing the Form I-797C, Notice of Action, for I-901 SEVIS (Student and Exchange Visitor Information System) fee payments. Payment confirmations the user can print from the fee website (https://www.fmjfee.com/i901fee/index.jsp) will replace the I-797C. ICE said that the printed confirmation “will serve as proof of payment for the I-901 SEVIS fee.”

The paper I-901, which no longer contains a field for expedited receipt delivery, is available on the SEVP website.

NOTICE

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6. Eighth Circuit Finds Undocumented Workers Covered Under FLSA

The U.S. Court of Appeals for the Eighth Circuit recently found that employers may not exploit undocumented workers’ status or profit from hiring such workers in violation of federal law.

For varying periods between June 2007 and March 2010, Elmer Lucas and five other undocumented workers toiled in the Jerusalem Café, some for less than minimum wage and all without receiving overtime wages. The workers sued the Café, and its then-owner Farid Azzeh and manager Adel Alazzeh, for willfully violating the Fair Labor Standards Act of 1938 (FLSA). A jury decided in the workers’ favor, and the district court for the Western District of Missouri awarded the workers minimum and overtime wages, statutory liquidated damages, and legal fees. The district court denied the employers’ motion for judgment as a matter of law, rejecting the argument that the workers, as noncitizens without work authorization, lacked standing to sue. The employers appealed, contending the FLSA does not apply to employers who illegally hire unauthorized workers.

The Eighth Circuit rejected the employer’s argument, finding that the FLSA does not allow employers to exploit any employee’s immigration status or to profit from hiring unauthorized workers in violation of federal law. The court acknowledged the principle that “breaking one law does not give license to ignore other generally applicable laws.” Among other things, the court noted:

Congress’s purposes in enacting the FLSA and the IRCA [Immigration Reform and Control Act of 1986] are in harmony. The IRCA unambiguously prohibits hiring unauthorized aliens, and the FLSA unambiguously requires that any unauthorized aliens—hired in violation of federal immigration law—be paid minimum and overtime wages. The IRCA and FLSA together promote dignified employment conditions for those working in this country, regardless of immigration status, while firmly discouraging the employment of individuals who lack work authorization. ‘If an employer realizes that there will be no advantage under the’ FLSA ‘in preferring [unauthorized] aliens to legal resident workers, any incentive to hire such … aliens is correspondingly lessened.’ Sure-Tan, 467 U.S. at 893. Exempting unauthorized aliens from the FLSA would frustrate the purposes of the IRCA, for unauthorized workers’ ‘acceptance … of jobs on substandard terms as to wages and working conditions can seriously depress wage scales and working conditions of citizens and legally admitted aliens.” De Canas v. Bica, 424 U.S. 351, 356-57 (1976).

OPINION

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7. India Second Preference Visa Cut-Off Date Advances; Significant New India Demand Expected in Coming Months

The India second preference cut-off date has advanced by more than three years, to January 1, 2008. In July, it stood at September 1, 2004. The Department of State’s Visa Bulletin for August 2013 notes that the advance is in an effort to fully use the numbers available under the overall employment second preference annual limit. “It is expected that such movement will generate a significant amount of new India demand during the coming months,” the bulletin notes, adding that “some type of ‘corrective’ action will be required at some point during FY 2014 in an effort to maintain number use within the applicable annual limits. Such action would involve the establishment and retrogression of such cut-off dates, and could occur at any time.”

AUGUST 2013 VISA BULLETIN

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8. State Dept. Revises B-2 Nonimmigrant Reciprocity Schedule for Cuba

The Department of State has revised the visa reciprocity schedule for Cuba for B-2 nonimmigrants, changing the validity from 6 months to 60 months.

UPDATES

FULL SCHEDULE OF VISA FEES AND VALIDITY PERIODS

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9. New Publications and Items of Interest

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].

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012. The writer, Saundra Amrhein, was nominated as a finalist on the short list for the 2011 Santa Fe Writers Project Literary Awards. Green Card Stories is also featured on National Public Radio’s photo blog.

For more information, e-mail Lauren Anderson at [email protected]. See also the Green Card Stories website.

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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10. Member News

The following ABIL members were selected by their peers for inclusion in the 20th Edition of The Best Lawyers in America in the practice area of Immigration Law:

Laura Danielson
Steve Garfinkel
Kenneth Ing
H. Ronald Klasko
Charles Kuck
Sharon Mehlman
John Nahajzer
Linda Rahal
Bernard Wolfsdorf
Stephen Yale-Loehr

The following ABIL members were recognized as Top Rated Lawyers for 2013 by Martindale-Hubbell and American Lawyer Media:

Rami Fakhoury)
Mark Ivener
Bernard Wolfsdorf

Robert Loughran spoke on August 8, 2013, at the West Texas Legislative Summit on the campus of Angelo State University on “Proposed Legislative and Procedural Changes to Immigration Law.”

Mr. Loughran presented on August 2, 2013, on “Potential Changes to Immigration Law in the Second Obama Term and Implications for Employers”; “Strategizing Short-Term Assignments: Limitations for Visitors”; and “How To Turn Your Immigration Program Into a Key Retention Tool” at the Austin Human Resource Management Association’s annual “Playbook for Success” conference in Austin, Texas.

Mr. Loughran spoke on July 11, 2013, on nonimmigrant visas and immigration basics at the Texas Association of School Personnel Administrators’ 2013 conference in Austin, Texas. The presentation included an overview of employment-based immigration and its three-step process, including a look at the employer’s role in sponsoring visas. MORE INFORMATION

Cyrus Mehta has published a new blog entry. “How California’s AB 1159 Will Hurt Immigration Lawyers and Their Clients: A New York Immigration Lawyer’s Perspective”

Angelo Paparelli was quoted in the Washington Post on August 3, 2013, in an article on how some employers help immigrants naturalize. Mr. Paparelli noted that although high-tech companies frequently sponsor foreign workers for visas or green cards, most companies have not gotten involved in the naturalization process. He said their involvement usually ends at getting work authorization, unless the employee needs to travel extensively overseas or obtain a national security clearance only available to a U.S. citizen.

Mr. Paparelli authored a new blog entry. “Immigration Mystery Revealed: The Occult Process Behind Nonimmigrant Visa Waivers”

Bernard Wolfsdorf co-authored a blog entry, “8 Issues That Must Be Addressed When Documenting Source of Funds for Chinese EB-5 Cases”

Mr. Wolfsdorf moderated a panel, “EB-5—$500,000/$1M Investor Green Cards” at a conference on August 14, 2013. The session delved into the EB-5 immigrant investor landscape with a particular focus on hot topics and tips, and how to avoid pitfalls.

Stephen Yale-Loehr was interviewed on August 14, 2013, on the Kojo Nnamdi show on WAMU about the EB-5 immigrant investor green card program. The EB-5 program is now part of Virginia’s gubernatorial race because Terry McAuliffe, the Democratic candidate for governor, is linked to a car company that made use of those visas to solicit foreign investment.

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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. DHS Issues FAQ on Supreme Court’s DOMA Ruling – Secretary of Homeland Security Janet Napolitano said she has “directed [USCIS] to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”

2. DOL Labor Certification Registry Goes Live – The registry is intended to provide the public with access to “appropriately redacted” copies of H-1B, H-1B1, E-3, H-2A, H-2B, and permanent labor certification documents issued by OFLC, as well as quarterly and annual case disclosure data.

3. ABIL Global: France – Under a new law, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses. Also, the deployment of biometrics has led to modifications in procedures for applying for a residence permit.

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

5. Member News – Member News

6. Government Agency Links – Government Agency Links

Details:

1. DHS Issues FAQ on Supreme Court’s DOMA Ruling

The Department of Homeland Security issued a FAQ on July 1, 2013, in response to the Supreme Court’s decision on June 26, 2013, United States v. Windsor, which struck down the 1996 Defense of Marriage Act (DOMA) as unconstitutional. That law had prohibited the federal government from recognizing same-sex marriages, regardless of whether they were legally valid in certain states or in other countries, and from conferring federal benefits on same-sex spouses that are enjoyed by heterosexual spouses.

The FAQ notes that Secretary of Homeland Security Janet Napolitano said she has “directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” The FAQ provides the following questions and answers:

Q1: I am a U.S. citizen or lawful permanent resident in a same-sex marriage to a foreign national. Can I now sponsor my spouse for a family-based immigrant visa?

A1: Yes, you can file the petition. You may file a Form I-130 (and any applicable accompanying application). Your eligibility to petition for your spouse, and your spouse’s admissibility as an immigrant at the immigration visa application or adjustment of status stage, will be determined according to applicable immigration law and will not be automatically denied as a result of the same-sex nature of your marriage.

Q2: My spouse and I were married in a U.S. state that recognizes same-sex marriage, but we live in a state that does not. Can I file an immigrant visa petition for my spouse?

A2: Yes, you can file the petition. In evaluating the petition, as a general matter, USCIS looks to the law of the place where the marriage took place when determining whether it is valid for immigration law purposes. That general rule is subject to some limited exceptions under which federal immigration agencies historically have considered the law of the state of residence in addition to the law of the state of celebration of the marriage. Whether those exceptions apply may depend on individual, fact-specific circumstances. If necessary, we may provide further guidance on this question going forward.

About 30,000 same-sex binational couples include spouses who may now be eligible for immigration benefits. The Supreme Court’s ruling applies only to same-sex couples in the 13 states that recognize gay marriage, not to the other states that don’t. Legal observers disagree whether a gay couple who gets married in one state and moves to another state that doesn’t recognize the marriage will still be entitled to federal benefits.

USCIS’S NEW FAQ

SUPREME COURT’S DOMA DECISION

DETAILS AND ADDITIONAL COVERAGE

FAQ ABOUT THE RULING’S IMPACT ON IMMIGRATION CASES

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2. DOL Labor Certification Registry Goes Live

The Department of Labor (DOL) recently announced implementation of the Labor Certification Registry (LCR) on the Office of Foreign Labor Certification’s (OFLC) iCERT Visa Portal System website. The LCR is intended to provide the public with access to “appropriately redacted” copies of H-1B, H-1B1, E-3, H-2A, H-2B, and permanent labor certification documents issued by OFLC, as well as quarterly and annual case disclosure data.

The LCR displays all certified H-1B1 and E-3 Labor Condition Applications (LCA) and permanent labor certifications, dating back to April 15, 2009. However, the DOL said it is experiencing technical difficulties with the display of approved H-1B LCAs. In addition, due to the historical paper-based filings of H-2A and H-2B applications, the DOL said that it must manually redact and upload these labor certification documents to the LCR. Therefore, only a limited number of records covering fiscal year 2013 are currently available. The agency said it anticipates that H-1B LCAs will be available soon, and that staff will continue to upload historical H-2A and H-2B documents in the coming months.

REGISTRY

RELATED FEDERAL REGISTER NOTICE

ANNOUNCEMENT

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3. ABIL Global: France

Under a new law, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses. Also, the deployment of biometrics has led to modifications in procedures for applying for a residence permit.

Same-Sex Marriage Rights Conferred Under French Immigration Procedures

The Act of May 17, 2013, modifies section 143 of the Civil Code to read: “Marriage is contracted by two persons of opposite sex or the same sex.” France thus joins the countries that have legalized marriage between persons of the same sex. Those countries include Belgium, Spain, Canada, some states in the United States and Brazil, the Netherlands, Sweden, New Zealand, South Africa, Mexico (Federal District), Argentina, Norway, Denmark, Portugal, Iceland, and Uruguay. The new law means that in France, marriage will confer the same rights under French immigration procedures regardless of the sex of the spouses.

General Provisions; Conflict of Laws In Other Countries; Consular Marriage

Article 202-1 of the Civil Code provides that the conditions for marriage are governed by family law, but article 202-2 provides that two persons of the same sex can marry when the family law or the law of the state of residence of one spouse permits. This arrangement allows avoidance of the application of the family law of one spouse prohibiting marriage between persons of the same sex when the marriage took place on the territory of a state recognizing marriage between persons of the same sex.

The above implies that two foreigners of the same sex can marry when one of them resides or is domiciled in France. However, this rule does not apply to nationals of countries with which France is bound by bilateral agreements (Poland, Algeria, Tunisia, Morocco, republics of the former Yugoslavia, Cambodia and Laos), which provide that the law governing conditions for marriage is the personal law. The marriage, however, may take place in a non-prohibitive state having no bilateral agreement with the country of the spouses.

Foreign nationals may find themselves in situations where their marriages in France are not recognized by their countries of origin.

A consular marriage (registered at the French consulate) between same-sex French nationals would not raise an issue. However, a consular marriage between a French national and a foreign national may be more complex in consular posts in countries that prohibit same-sex marriage. In such case, the Civil Code provides that marriage may take place in France.

The law of May 17, 2013, also provides that marriages between same-sex couples, validly celebrated abroad at a time when the French law forbade it, may be recognized retroactively.

Impact on French Immigration Rights of Foreign Nationals Moving to France

Derivative residence and worker rights known as “accompanying family rights” will be applicable to married foreign workers under Intra-Company Transfer, EU Blue Card, and Skills and Talents status, regardless of the sexual identity of the spouses when the marriage is celebrated in France or recognized by France (marriage between two foreigners) on the basis of the new provisions of the Civil Code and Article L313-11-3 CESEDA (code de l’entrée et du séjour des étrangers et du droit d’asile).

A same-sex marriage between a foreign national and a French national will allow the issuance of a visa and a residence permit to the foreign national as the spouse of a French national, on the basis of the Civil Code and Article L313-11-4 CESEDA.

The marriage between a third-country national in the European Union with a European citizen is expected to allow the issuance of a residence permit as a European spouse under Articles L121-3 to L121-5 CESEDA.

Recognition of marriage for same-sex couples could also give rise to new legal actions when a decision refusing stay may be considered as disproportionate interference with the rights to private and family life, under Article 8 of the European Convention on Human Rights.

Biometrics Deployed

The deployment of biometrics in all French departments (département, or administrative area) has led to modifications in procedures for applying for a residence permit and requires an additional appearance at the Prefecture for fingerprinting. This change also will affect the beneficiaries of one-stop Office Français de l’Immigration et de l’Intégration (OFII) processing (e.g., Intra-Company Transferees, EU Blue Cards, Skills and Talents) by the end of the year.

Gradual Deployment of Biometrics and Modifications in Residence Permit Application Process

A regulation of the Council of the European Union (EC), No. 380/2008 of April 18, 2008, mandates a new format for biometric residence permits comprising an electronic component into which are inserted a photograph and two fingerprint images. Under this regulation, the Ministry of Interior issued two circulars in April 2011 and June 2012, describing the details on implementing the new residence permit requirement and the progressive deployment of biometrics, which is now effective in several departments.

After a first stage completed in 2011 with the release of the new uniform format for residence permits, the second step will be to collect and insert fingerprints of foreign nationals collected by the Prefecture into the integrated residence electronic component of the permit.

The fingerprinting will require modifications of the procedures for applying for a residence permit. Any person requesting a residence permit (first application or renewal) will be required to go in person to the Prefecture for fingerprinting, as noted above. A deposit at City Hall will no longer be possible and procedures by mail will be affected.

Fingerprints will be valid for five years.

Impact on Categories of Foreigners Benefiting From the One-Stop OFII Process

To date, the three categories of foreigners benefiting from the one-stop OFII process (Intra-Company Transferees, EU Blue Cards, Skills and Talents), as well as family members of holders of these permits, have been exempted temporarily from biometric compliance in the departments using the one-stop OFII process. This exemption is valid until completion of the deployment of biometrics. France had aimed at full deployment by the end of the first half of 2013, but only a few departments have implemented biometrics to date: Loire-Atlantique, Alpes-Maritimes, Hauts-de-Seine, SaÔne-et-Loire, Essonne, Seine-et-Marne, and Puy-de-DÔme. However, the deployment will affect all French departments by the end of the year.

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4. New Publications and Items of Interest

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.”

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].

Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.

Green Card Stories has won five national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012. The writer, Saundra Amrhein, was nominated as a finalist on the short list for the 2011 Santa Fe Writers Project Literary Awards. Green Card Stories is also featured on National Public Radio’s photo blog.

For more information, e-mail Lauren Anderson at [email protected]. See also the Green Card Stories website.

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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5. Member News

Charles Kuck has authored a new blog entry. “Immigration Reform – What Words Mean Makes All the Difference”

Cyrus Mehta has authored a new blog entry. ” How Extraordinary Does One Need To Be To Qualify As A Person of Extraordinary Ability?” He also co-authored a blog entry. “How Cyrus’ View of Religious Toleration May Have Inspired the U.S. Constitution”

Angelo Paparelli has authored a new blog entry. “USCIS, America’s Immigration Cutcherry, Adopts New Procedures as the Boss Readies for a Move Upstairs”

Stephen Yale-Loehr wrote an op-ed about the Senate immigration bill that was published in El Norte, a Mexican newspaper, on July 4, 2013. He summarized what the Senate bill would do. He said, among other things, that the bill would both benefit and hurt Mexicans: “The Senate bill contains a legalization program, but it requires a long wait and many requirements, so many people may not end up being able to legalize their status. Also, the border security provisions in the Senate bill are too tough. They unnecessarily militarize the border and would harm U.S.-Mexican relations.” SPANISH VERSION

Mr. Yale-Loehr was featured in several recent LexisNexis PODCASTS and ARTICLES.

Mr. Yale-Loehr was quoted:

• In the Wall Street Journal on July 2, 2013, in “Snowden’s Asylum Effort Hits Roadblocks.” He said Mr. Snowden could ask Russia to issue him a refugee travel document under the United Nations convention on refugees.
• In Time.com on July 2, 2013, in “Snowden’s Worst-Case Scenario: What If No Countries Take Him?” He said he thought Mr. Snowden could be in Moscow for a long time, but that he could be helped by Article 28 of the United Nations convention on refugees, which asks member states to give “sympathetic consideration” to those who can’t obtain the necessary documents from their home countries.
• In the Gannett newspaper chain, in articles about the Senate immigration bill. Commenting on the estimated 11 million people who entered the United States without authorization or overstayed their legal visits before December 31, 2011, who would be offered a 13-year path to citizenship beginning with their application for registered provisional immigrant status, Mr. Yale-Loehr noted that requirements under the Senate bill would exclude some.
• In TribLIVE/USWorld on June 27, 2013. In “Immigration Bill Unlikely To Pass House,” he noted, “The Senate’s passage of a major immigration reform bill is a milestone, but it is only half the battle. A tougher battle lies ahead in the House.”

Mr. Yale-Loehr also was quoted in an article about the prospects for immigration reform in the House of Representatives. A version of the story was published on July 9, 2013, in the Arizona Republic.

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6. Government Agency Links

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

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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