Headlines:

1. California ‘Dream Act’ Becomes Law – California’s Governor Jerry Brown has signed into law the second portion of the California “Dream Act,” AB 131, which allows undocumented students to qualify for state-funded scholarships and financial aid for state universities after other legal resident and U.S. citizen students have applied.

2. Federal Court Halts Parts of Alabama Immigration Law – The U.S. Court of Appeals for the 11th Circuit issued an injunction pending appeal blocking certain provisions of Alabama’s new immigration law.

3. USCIS Seeks Comments on Proposed EB-5 Immigrant Investor Rule – The processes outlined in the proposed rule would provide an additional two-year period for certain immigrant investors to meet the EB-5 investment and job-creation requirements.

4. USCIS Suddenly Redirects I-797 ‘Notice of Action’ Receipts, Approvals To Petitioners – Effective September 12, 2011, the agency began sending original Form I-797, Notice of Action, receipt and approval notices directly to applicants and petitioners.

5. Customs and Border Protection Discontinues H-2A/2B Exit Program Pilot – U.S. Customs and Border Protection has discontinued the H-2A and H-2B Temporary Worker Visa Exit Program Pilot, effective September 29, 2011.

6. OCAHO Orders Drywall Company To Pay $173,250 in Penalties – The company was ordered to pay $770 per violation for failure to ensure that employees completed or signed I-9 forms, among other things.

7. Justice Dept. Sues California Healthcare Provider for Discrimination – DOJ alleged that the company engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on naturalized U.S. citizens and non-U.S. citizens to work in the U.S.

8. November EB-2 Cut-Off Dates for China and India Most Favorable Since 2007 – The November EB-2 cut-off date for China and India is November 1, 2007.

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. California ‘Dream Act’ Becomes Law

California’s Governor Jerry Brown has signed into law the second portion of the California “Dream Act,” AB 131, which allows undocumented students to qualify for state-funded scholarships and financial aid for state universities after other legal resident and U.S. citizen students have applied. Gov. Brown said it would enable top students to have “a chance to improve their lives and the lives of all of us.” He signed the first portion, AB 130, in July, which allows such students to apply for private scholarships and loans. Currently, undocumented California high school graduates can apply for in-state tuition rates, as can those in 12 other states, including New York, Texas, and Washington.

Assemblyman Gil Cedillo (D-Los Angeles) said the legislation will increase California’s competitiveness in the global economy and that California “is prepared to lead the country with a positive and productive vision for how we approach challenging issues related to immigration.” Los Angeles Mayor Antonio Villaraigosa said the new law “invests in the dreams of talented undocumented students and in the economic future of our state.”

Not everyone in California is on board with the new law, however. Assemblyman Tim Donnelly (R-Hesperia), wants to put an initiative on the ballot to overturn it, calling the new law “absolutely, fundamentally wrong and unfair and…an insult to people who have worked and played by the rules, including those who have come to this country legally.” Stay tuned.

The text of AB 131 (as enrolled) is available at http://e-lobbyist.com/gaits/text/351864.

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2. Federal Court Halts Parts of Alabama Immigration Law

The U.S. Court of Appeals for the 11th Circuit issued an injunction pending appeal on October 14, 2011, blocking certain provisions of Alabama’s new immigration law, HB 56. The provisions blocked included requiring the immigration status of students to be checked in public schools and making failure to “complete or carry an alien registration card” a misdemeanor for immigrants. The court allowed Alabama to enforce other controversial provisions, such as requiring that police attempt to determine the immigration status of people stopped who they suspect are unauthorized; barring state courts from enforcing contracts with undocumented individuals if the hiring party knew that the person was in the U.S. unlawfully; and making it a felony for undocumented people to enter into business transactions in Alabama, including applying for a driver’s license or business license.

The Department of Justice had filed an appeal with the 11th Circuit because of potential negative consequences of the new state law both domestically and internationally, including conflicts with federal responsibilities, discrimination against those legally in the U.S., driving undocumented persons underground or to other states, and affecting diplomatic relations. Advocacy groups, including the American Civil Liberties Union, had filed a separate motion against Alabama’s new law.

The law is already having an impact in Alabama. For example, reportedly a quarter of commercial building workers have left the state, several thousand students have stopped going to school, and church attendance has dropped. Anecdotal evidence is piling up. The Alabama-based Southern Poverty Law Center, which set up a hotline, received about 2,000 calls so far from people with problems such as being afraid to drive their sick family members to the doctor, being unable to set up water service because water companies were requiring them to prove their legal status, or whose children were being bullied at school. The Department of Justice has also set up a hotline for complaints about the Alabama law, telephone: 1-855-353-1010; e-mail: [email protected].

Tomato farmer Jamie Boatwright reported that he has a large crop of tomatoes ripe and ready for picking, but most of his workers have left Alabama. Similarly, the owners of Smith & Smith Farms were struggling with three trucks of workers for harvesting instead of 12. Both farms reported that U.S. workers were mostly either not interested or started working but then quit after a few hours. Meanwhile, contractors are taking longer to rebuild after the spring tornadoes that devastated the Tuscaloosa area. “We’re seeing smaller crews and seeing work take longer to accomplish,” said Jimmy Latham, president of Alabama Associated General Contractors and a Tuscaloosa contractor.

Alabama state Senator Scott Beason, who sponsored the legislation, said he is receiving similar complaints from local businesses experiencing difficulties in finding workers and keeping their businesses going. He asserted that there are sufficient numbers of Americans willing to do the jobs abandoned by undocumented workers, and that the adjustment to the new law will take time. Mr. Boatwright begs to differ, noting that he hasn’t been able to attract or retain American workers to his tomato farm and that if he were to raise his wages in an attempt to do so, he would also have to hike the price of his tomatoes and would lose business to neighboring states.

The text of the Alabama law is available at http://alisondb.legislature.state.al.us/acas/searchableinstruments/2011rs/bills/hb56.htm. The latest opinion from the 11th Circuit is at http://www.ca11.uscourts.gov/unpub/ops/201114532ord.pdf. The most recent previous court action on the law, enjoining certain provisions but upholding others, is available at http://irli.org/system/files/US%20v%20Alabama%2011-2746%20PInj%20Order_9-28-11.pdf.

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3. USCIS Seeks Comments on Proposed EB-5 Immigrant Investor Rule

U.S. Citizenship and Immigration Services (USCIS) seeks public comments on a proposed rule published on September 28, 2011, that would enable the agency to process certain applications approved between 1995 and 1998 by immigrant investors under the fifth preference employment-based (EB-5) immigrant visa classification.

The proposed rule would implement provisions of the 21st Century Department of Justice Appropriations Authorization Act that apply to a group of immigrant investors who had a Form I-526, Immigrant Petition by Alien Entrepreneur, approved between January 1, 1995, and August 31, 1998. Specifically, the rule would enable USCIS to process cases for approximately 580 principal immigrant investors and their dependents whose I-526 petitions were approved during that period and who, before November 2, 2002, sought to:

• Register for permanent residence or adjust their status (using Form I-485); or
• Remove conditions on permanent residence obtained as an entrepreneur (using Form I-829).

The processes outlined in the proposed rule would provide an additional two-year period for most of these immigrant investors to meet the EB-5 investment and job-creation requirements. This rule would not impact any other applications or petitions filed under the EB-5 program.

Comments will be accepted until November 28, 2011, and should be submitted via one of the methods listed in the proposed rule, which is available at http://www.gpo.gov/fdsys/pkg/FR-2011-09-28/pdf/2011-24619.pdf. USCIS corrected the docket number for the proposed rule on October 4, 2011; see http://www.gpo.gov/fdsys/pkg/FR-2011-10-04/pdf/2011-25463.pdf.

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4. USCIS Suddenly Redirects I-797 ‘Notice of Action’ Receipts, Approvals To Petitioners

On September 30, 2011, U.S. Citizenship and Immigration Services (USCIS) posted a notice on its website stating that, effective September 12, 2011, the agency began sending original Form I-797, Notice of Action, receipt and approval notices directly to applicants and petitioners. USCIS said that courtesy copies of the notices are being sent to attorneys or accredited representatives, if a Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative, is on file. Previously, the original notice had been sent to the attorney or accredited representative’s address listed on the Form G-28, while a copy was sent to the address provided by the applicant or petitioner in the applicable application or petition form.

USCIS said it implemented this notification change to ensure that documents (such as I-94 Arrival-Departure Records) are mailed directly to the address specified by the applicant or petitioner. USCIS said it “apologizes for any inconvenience caused by not conducting commensurate outreach and providing time for affected stakeholders to adjust their practices.”

USCIS noted that on November 28, 2011, the final rule for Immigration Benefits Business Transformation, Increment I, will take effect. Under the amendments made by this rule, documents produced as the result of an approved application or petition will be mailed directly to the address provided by the party seeking the benefit on the applicable application or petition and not that specified by the attorney or accredited representative on a G-28. “Our objective is to make sure that original receipts, decisions, and documents produced as a result of approved applications or petitions are sent to the address specified by the party making the request,” USCIS said.

In an effort to combat possible scams, USCIS said it generally discourages the practice of entering another person’s address for mailing purposes. Nonetheless, Form I-129, Petition for a Nonimmigrant Worker, petitioners who would like an attorney or representative of record to resume receiving original I-797 notices may use an attorney’s address as the mailing address on the petition, USCIS said.

USCIS warned that using an address other than the petitioner’s address as the mailing address may cause processing delays related to the Validation Instrument for Business Enterprises (VIBE), however, because VIBE automatically uses the address provided on the petition to validate the petitioner’s current location. If petitioners use an attorney’s address as the mailing address on the I-129 petition, USCIS said a cover letter should be included with the filing that clearly indicates the current address of the petitioner. “This information will be used to assist the Immigration Services Officer (ISO) in completing a manual check in VIBE using the petitioner’s address,” USCIS said. “In addition, if an attorney’s address is used as the petitioner’s mailing address on the form, the petitioner will not receive any I-797 notices.”

For petitions filed through Premium Processing, USCIS said the applicant or petitioner may provide an alternate address for mailing of the original approval notice and the I-94 if a pre-paid, self-addressed mailer is provided with the requested mailing address.

Many people have complained about the new procedure. The potential harm that can result from a misrouted, mishandled, or lost document can be serious. For example, when an I-797 notice is sent to a large employer, the document can be misrouted within the organization, resulting in delays in reaching the foreign national. In a worst-case scenario, the document can be lost. In addition, some attorneys have reported that requests for additional evidence are going directly to petitioners and applicants, not to attorneys of record. The change in the processing of notices and decisions undermines the right of a party to the effective assistance of counsel and impedes the ability of attorneys to zealously represent their clients.

The USCIS held a teleconference on October 12, 2011, to hear stakeholders’ concerns about the new I-797 procedures, but it is unclear whether the agency will make any changes.

The USCIS notice about the I-797 processing change is at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=10db489ad93f2310VgnVCM100000082ca60aRCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD.

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5. Customs and Border Protection Discontinues H-2A/2B Exit Program Pilot

U.S. Customs and Border Protection has discontinued the H-2A and H-2B Temporary Worker Visa Exit Program Pilot, effective September 29, 2011. The pilot began on December 8, 2009. It required temporary workers in H-2A or H-2B nonimmigrant classifications who enter the United States at the port of San Luis, Arizona, or the port of Douglas, Arizona, to depart (at the time of their final departure) from these respective ports and to submit certain biographical and biometric information at one of the kiosks established for that purpose.

The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-09-29/pdf/2011-24716.pdf.

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6. OCAHO Orders Drywall Company To Pay $173,250 in Penalties

The Executive Office for Immigration Review’s Office of the Chief Administrative Hearing Officer (OCAHO) has ordered Ketchikan Drywall Services, Inc., of the Puget Sound area of Washington, to pay penalties for various I-9 violations. Ketchikan was ordered to pay $770 per violation, for a total of $173,250, for violations such as failure to ensure that employees completed or signed I-9 forms.

Among other things, the decision noted that failure to complete an I-9 form is not a mere technical or procedural failure but “is substantive in nature and defeats the purpose of the law.” Such substantive violations include, among other things, failing to collect an employee signature; listing the wrong documents to establish identity or employment eligibility; failing to complete the I-9 within three days of hire; and failing to fully complete the form, including the employee attestation that he or she is authorized for employment in the U.S., and regardless of what other documents may have been copied or retained. The decision noted that “[c]opying the documents may well serve to insulate an employer from errors in transcribing the information, but nothing . . . purports to excuse an employer who fails to transcribe any information at all.” The decision noted that specific instances of omission when a copy of a document is retained with the form will be considered on a case-by-case basis, but “there is no general rule that omissions are cured by copying documents.”

The decision, which includes additional details about Ketchikan’s various violations, is available at http://www.justice.gov/eoir/OcahoMain/publisheddecisions/Looseleaf/Volume10/1139.pdf.

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7. Justice Dept. Sues California Healthcare Provider for Discrimination

The Department of Justice (DOJ) filed a lawsuit on September 30, 2011, against Generations Healthcare, a provider with skilled nursing facilities throughout California, alleging that it engaged in a pattern or practice of discrimination by imposing unnecessary documentary requirements on naturalized U.S. citizens and non-U.S. citizens to work in the U.S. The Department noted that employers are prohibited by law from placing additional burdens on work-authorized employees during the process of hiring or when verifying their employment eligibility based on their citizenship status or national origin.

The DOJ’s investigation found that the company demanded that a work-authorized applicant produce a permanent resident card, also known as a “green card.” The applicant did not have a green card and instead presented an employment authorization document. The company rejected her valid documentation because it had a future expiration date and told her that it could not hire her to work at its St. Francis Pavilion facility unless she presented a green card. As a result, the applicant was unable to obtain employment with the company.

The department’s investigation also revealed that Generations Healthcare required all newly hired non-U.S. citizens and naturalized U.S. citizens at its St. Francis Pavilion facility to present specific and extra work authorization documents beyond those required by federal law to prove their status, a burden that was not placed on native-born U.S. citizens.

“Employers are not allowed to impose more burdensome employment eligibility verification procedures on certain workers based on their citizenship status,” noted Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.

The DOJ’s media release announcing the lawsuit is available at http://www.justice.gov/opa/pr/2011/September/11-crt-1301.html.

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8. November EB-2 Cut-Off Dates for China and India Most Favorable Since 2007

The Department of State’s Visa Bulletin for November 2011 includes the following:

The November employment-based second preference cut-off date for applicants from China and India is the most favorable since August 2007. This advancement is expected to generate significant levels of demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices. While significant future cut-off date movements are anticipated, they may not be made on a monthly basis. Readers should not expect such movements to be the norm throughout the fiscal year, and an eventual retrogression of the cut-off at some point during the year is a distinct possibility.

The November EB-2 cut-off date for China and India is November 1, 2007.

The November Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5572.html.

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9. New Publications and Items of Interest

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 will be released soon. For more information or to pre-order, visit https://www.abil.com/green_card.cfm.

Foreign labor certification annual report. The Department of Labor’s Office of Foreign Labor Certification has released its annual report for the period October 1, 2009 – September 30, 2010. The report notes, among other things, that In the last three quarters of fiscal year 2010, computer-related occupations ranked among the most commonly requested occupations on prevailing wage determinations (PWDs) issued. Computer Software Engineer, Computer Systems Analyst, Computer and Information Systems Manager, and Computer Programmer occupations constituted over 25 percent of the total PWDs issued. Of these occupations, Computer Software Engineers, Applications, was the most frequently requested occupation, representing 13 percent of all PWDs issued. The remaining most frequently requested occupations each represented 2 percent or less of the total PWDs issued.

The report is available at http://www.foreignlaborcert.doleta.gov/pdf/OFLC_2010_Master_for_WebSite_StateFix.pdf.

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

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10. Member News

Laura Danielson was quoted in the Pioneer Press on October 1, 2011. In an article about Somali singer Aar Maanta’s show being canceled because of a visa delay, Ms. Danielson said, “My understanding is that [the delay] was for administrative processing, which likely means a background name check. He is the only one in the group with a Muslim name, which is more likely to trigger a hit in the government database.”

Mark Ivener gave a presentation, “M&A Deals Can Affect Key Workers’ Visa Status,” at the Professionals In Human Resources Association (PIHRA) Annual Conference on August 30, 2011, in Anaheim, California.

Cyrus Mehta has published several new blog entries. “Prosecutorial Discretion and the ‘Criminal Alien’ ” is available at http://cyrusmehta.blogspot.com/2011/10/prosecutorial-discretion-and-criminal.html. “Some Preliminary Reactions to the District Court Decision Refusing To Enjoin Portions of Alabama’s Immigration Law” is available at http://cyrusmehta.blogspot.com/2011/10/some-preliminary-reactions-to-district.html.

Mr. Mehta spoke on a panel for Brooklyn Law School faculty on September 21. The topic was “Teaching Ethics Across the Curriculum.”

Alliance of Business Immigration Lawyers members participated in the 5th Biennial Global Immigration Conference of the International Bar Association in London, England, on September 23-24, 2011, including Kehrela Hodkinson and Mr. Mehta. The conference program is available at http://www.int-bar.org/conferences/conf383/binary/London%20Global%20Immigration%202011%20programme.pdf.

Angelo Paparelli has published a new blog entry. “Suffer the Children: Immigration Heartlessness and Hypocrisy” is available at http://www.nationofimmigrators.com/.

H. Ronald Klasko was named Philadelphia’s Immigration Law Lawyer of the Year by Best Lawyers 2012.

Bernard Wolfsdorf was named Los Angeles Immigration Law Lawyer of the Year by Best Lawyers 2012.

For more information on Best Lawyers 2012, see http://www.bestlawyers.com/.

Stephen Yale-Loehr moderated “DREAM Act: A Pipe Dream or Eventual Reality?” on October 3, 2011, at Cornell University.

Mr. Yale-Loehr was quoted in International Business Times on September 30, 2011, in an article about the Alabama immigration law federal court decision. He said, “Because of the proliferation of state immigration laws, we need resolution from either the Supreme Court or Congress. Right now, for example, it is very hard for national employers to know what they can or cannot do in various states.” The article is available at http://www.ibtimes.com/articles/222715/20110930/alabama-immigration-law-immigration-law-ruling-immigration-supreme-court-georgia-immigration-arizona.htm?cid=2.

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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. USCIS Institutes Direct E-Mail Communication for Regional Center Applicants – Beginning on September 13, 2011, Form I-924 applicants are able to communicate directly with USCIS adjudicators via e-mail.

2. DOL Releases H-2A Employer Filing Tips – The tips remind employers about common mistakes that may result in processing delays for temporary agricultural workers.

3. USCIS Considers Changes to Employment Authorization Policies for TPS Beneficiaries – USCIS is considering regulatory changes affecting the work authorization of temporary protected status beneficiaries and applicants.

4. SEVP Updates SEVIS Instructions, List of Approved Schools – The Student and Exchange Visitor Program has updated instructions and the list of approved schools for SEVIS.

5. U.S. Consulate in Mumbai Resumes H and L Visa Processing – The resumption in processing follows a hiatus since March due to infrastructure problems.

6. USCIS Publishes CNMI Transitional Worker Final Rule – The rule establishes a transitional worker nonimmigrant visa classification (CW) for workers in the Commonwealth of the Northern Mariana Islands.

7. Immigration and Customs Training Complex Opens in Georgia – The ICE-funded project provides a central classroom location for all ICE Academy basic and specialized training programs.

8. ABIL Global: Germany Institutes New Requirements for Electronic Travel Permit – Germany Institutes New Requirements for Electronic Travel Permit

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 Institutes Direct E-Mail Communication for Regional Center Applicants

USCIS is implementing the first phase in a series of proposed enhancements to the EB-5 immigrant investor program. Beginning on September 13, 2011, Form I-924 (Application for Regional Center Under the Immigrant Investor Pilot Program) applicants are able to communicate directly with USCIS adjudicators via e-mail.

USCIS intends to monitor the progress of this new line of communication to assess whether changes are needed and to implement any needed changes on a “real-time basis.” Feedback in response to the use of the direct line of communication for the I-924 may be e-mailed to [email protected].

USCIS said it “is eager to implement all of the proposed enhancements to the EB-5 program that it first announced on May 19, 2011.” USCIS is exploring how it can accelerate the implementation of premium processing, “which customarily takes months due to the need to revise the applicable forms.” USCIS said it is hiring economists and other experts who will enhance and accelerate the adjudication process and also help constitute the Decision Board that was first described on May 19.

USCIS said it will provide more information at its national stakeholder engagement on September 15. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=efccf0aec9262310VgnVCM100000082ca60aRCRD&vgnextchannel=facb83453d4a3210VgnVCM100000b92ca60aRCRD. Information on the proposed enhancements to EB-5 processing is available at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Operartional%20Proposals%20for%20Comment/EB-5-Proposal-18May11.pdf.

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2. DOL Releases H-2A Employer Filing Tips

The Department of Labor’s Office of Foreign Labor Certification has released “H-2A Employer Filing Tips.” Based on 16 months of processing experience at the Chicago National Processing Center, the filing tips remind employers about common mistakes that may result in processing delays for temporary agricultural workers. Included are tips on pre-filing, forms, and recruitment.

The filing tips are available at http://www.foreignlaborcert.doleta.gov/pdf/650090_slaughter_H-2A_filing_tips_8-29-11.pdf. A FAQ on the H-2A program is available at http://www.foreignlaborcert.doleta.gov/pdf/H-2AFAQsRound3fnl.pdf.

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3. USCIS Considers Changes to Employment Authorization Policies for TPS Beneficiaries

On September 8, 2011, U.S. Citizenship and Immigration Services’ Office of Policy and Strategy and Office of Public Engagement held a teleconference to discuss the employment authorization of temporary protected status (TPS) beneficiaries and applicants.

USCIS initiated a review of the current policies related to TPS in 2010. During this review, USCIS noted that 8 CFR § 244.12:

• Allows TPS beneficiaries and applicants who have TPS withdrawn or denied to remain authorized for work until their employment authorization documents (EADs) expire, rather than upon withdrawal or denial; and
• Extends the employment authorization of TPS beneficiaries or applicants whose TPS has been withdrawn or denied through any appeal to the Administrative Appeals Office (AAO) and/or a de novo determination during removal proceedings.

USCIS explained that TPS beneficiaries are authorized to work based on their status. TPS applicants who are found to be prima facie eligible for TPS may also receive employment authorization as a “temporary treatment benefit” while their TPS applications remain pending. USCIS is considering a regulatory change that would terminate their employment authorization if TPS is withdrawn or denied, rather than allow it to exist until the expiration of their EADs. Additionally, USCIS is considering:

• Whether a person who has appealed a TPS denial or withdrawal decision to the AAO or who has sought de novo review of such a decision in removal proceedings should be permitted, in certain circumstances, to request that USCIS issue an EAD while his or her TPS request is under review; and
• If so, what limitations, if any, should be placed on the EADs that may be issued while an AAO appeal is pending or while the TPS request is under review in removal proceedings.

The USCIS notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ad140013f0602310VgnVCM100000082ca60aRCRD&vgnextchannel=994f81c52aa38210VgnVCM100000082ca60aRCRD.

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4. SEVP Updates SEVIS Instructions, List of Approved Schools

U.S. Immigration and Customs Enforcement’s Student and Exchange Visitor Program (SEVP) released updated instructions on September 7, 2011, for users of the Student and Exchange Visitor Information System (SEVIS). The instructions include information for new users, users with deleted SEVIS access, those deleting or terminating access, and password resets. Also, on September 1, SEVP released an updated list of approved schools, along with an approved schools map.

The updated instructions are available at http://www.ice.gov/doclib/sevis/pdf/sevis-instructions-to-all-users-pics-access.pdf. The latest list of approved schools is available at http://www.ice.gov/doclib/sevis/pdf/ApprovedSchools.pdf. The map is available at http://www.ice.gov/sevis/map/approvedschoolsmap.htm.

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5. U.S. Consulate in Mumbai Resumes H and L Visa Processing

The U.S. Consulate General in Mumbai recently announced the resumption of interviews for H and L visas, after a stoppage beginning in March 2011 due to aging infrastructure. In 2010, Indian applicants received 65 percent of all H-1B visas issued worldwide. All interviews will be conducted at the Lincoln House Consulate building, located at 78, Bhulabhai Desai Road, until further notice. Visa appointments may be made online via VFS at http://www.vfs-usa.co.in/ApplnForms/SchduleMenu.aspx. The announcement is available at http://mumbai.usconsulate.gov/interviews-and-appointments.html.
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6. USCIS Publishes CNMI Transitional Worker Final Rule

U.S. Citizenship and Immigration Services (USCIS) published a final rule on September 7, 2011, that establishes a transitional worker nonimmigrant visa classification (CW) for workers in the Commonwealth of the Northern Mariana Islands (CNMI). The CW classification allows employers in the CNMI to hire nonimmigrant workers who are otherwise ineligible to work.

A foreign worker may be eligible for CW status if he or she is:

• Ineligible for a nonimmigrant or immigrant classification under the Immigration and Nationality Act;
• Entering or staying in the CNMI to work as a needed foreign national worker to supplement the resident workforce;
• The beneficiary of a petition filed by a legitimate employer who is doing business in the CNMI;
• Not present in the United States, other than the CNMI;
• Lawfully present in the CNMI or, if not present, intending to enter the CNMI with a visa; and
• Admissible to the United States or has received any necessary waiver of a ground of inadmissibility.

An employer may be eligible to petition for a CW worker if the employer:

• Is conducting a legitimate business, as defined in the final rule;
• Has considered all available U.S. workers for the position;
• Offers terms and conditions of employment consistent with the nature of the employer’s business in the CNMI;
• Is complying with federal and CNMI employment requirements;
• Files a Form I-129CW, Petition for CNMI-Only Nonimmigrant Transitional Worker, and a CW-1 Classification Supplement with USCIS; and
• Submits the appropriate filing fees.

In most cases, employers may file for multiple beneficiaries on the same form. The filing fees needed to obtain CW status include:

• A $325 fee for the Form I-129CW;
• A mandatory CNMI education funding fee of $150 per beneficiary per year; and
• A biometric fee of $85 if the worker is located in the CNMI.

A limited number of CW visas are available each fiscal year, based on the CNMI government’s estimate of nonresident workers. The numerical limitation for fiscal year (FY) 2011 is 22,417 and for FY 2012 will be 22,416. The final rule mandates that the limitation must drop annually and that the Department of Homeland Security determine the fiscal year limitation for CW workers for subsequent fiscal years beginning in FY 2013.

The CW visa classification is valid only in the CNMI and provides no basis for travel or work in any other part of the United States, except for nationals of the Philippines, who may travel between the Philippines and the CNMI through the Guam airport. The final rule also provides for the grant of derivative CW status to spouses and minor children of CW workers.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3b0403dca1042310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The final rule is available at http://www.gpo.gov/fdsys/pkg/FR-2011-09-07/html/2011-22622.htm. A Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=378603dca1042310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. For more information and announcements on immigration benefits specific to the CNMI, see http://www.uscis.gov/cnmi.

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7. Immigration and Customs Training Complex Opens in Georgia

A new training complex for U.S. Immigration and Customs Enforcement (ICE) special agents and officers recently opened in Georgia, co-located with the Federal Law Enforcement Training Center (FLETC). The new ICE Academy complex includes four computer labs, nine classrooms, two electronics labs, and two breakout rooms.

The ICE-funded project provides a central classroom location for all ICE Academy basic and specialized training programs. The classroom complex will house ICE’s two basic training programs: ICE Enforcement and Removal Basic Law Enforcement Training and ICE Homeland Security Investigations Special Agent Training. Specialized ICE programs designated for the building include technical enforcement, Spanish language, and instructor development courses.

In fiscal year 2010, the ICE Academy trained nearly 4,000 ICE employees, enrolled in more than 30 training programs. FLETC serves as an interagency law enforcement training organization for 90 federal agencies. In addition, the organization provides training to state, local, campus, tribal, and international law enforcement agencies. During FY 2010, over 65,000 students trained at the FLETC centers. Since its inception in 1970, nearly 940,000 law enforcement officers and agents have been trained at the largest law enforcement training organization in the country.

Headquartered on a 1,600-acre campus at Glynco, FLETC also operates facilities in Artesia, NM; Charleston, SC; and Cheltenham, MD. Additionally, FLETC has oversight responsibility on behalf of the Department of Homeland Security for the International Law Enforcement Academy (ILEA) at Gaborone, Botswana; assists in the management of the ILEA in Bangkok, Thailand; and supports training at each of these ILEAs, as well as the ILEA in Budapest, Hungary, and San Salvador, El Salvador.

The announcement is available at http://www.fletc.gov/news/press-releases/fletc-opens-2.5m-state-of-the-art-ice-academy-classroom-complex.

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8. ABIL Global: Germany Institutes New Requirements for Electronic Travel Permit

Since September 1, 2011, applicants for a German electronic residence permit (elektronischer Aufenthaltstitel or eTA) must attend an in-person meeting at the foreigner’s office (together with any family members). Fingerprints and biometric photographs will be taken. The conventional residence permit (adhesive label), the residence card and permanent residence card, and the replacement ID in paper form are being replaced by the electronic residence permit, which will be granted in a credit card-style format.

The electronic residence permit is equipped with a contact-free chip inside the card on which biometric features (photograph and two fingerprints), ancillary conditions (special requirements), and personal data are saved. In addition, the chip is capable of being used as an electronic identity document and qualified electronic signature. The photograph is saved on the body of the card and on the chip. Two fingerprints will also be saved on the chip for all residents of non-member states age 6 and up. For that reason, it is necessary to appear in person for the application.

Only official entities (such as the police of aliens authorities) are authorized to access the photograph and fingerprints. Ancillary conditions are saved on the chip and on a unique supplementary sheet that comes with the electronic residence permit.

Authorized service providers such as banks and official authorities may offer electronic services in which the holder identifies himself or herself electronically using the electronic residence permit. This simplifies the process of such activities as logging into Internet portals, filling out forms, and verifying one’s age on the Internet or at machines. Only providers who possess state authorization will receive access to the holder’s data. In addition, the holder must confirm the transfer of his or her personal data with a six-digit PIN number. The service providers are not able to read the biometric features when using the online identification function.

The electronic residence permit can also save a certificate with a qualified electronic signature. This provides electronic residence permit holders with the option of signing legally effective digital documents if desired.

The permits are not produced by the foreigner’s offices and must be picked up. However, there is no need for the applicant to appear in person and it is possible to grant a power of attorney to allow another person to pick up the permit.

Finally, any permit that was granted before September 1, 2011, will remain valid until no later than April 30, 2021.

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9. New Publications and Items of Interest

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 will be released on November 8. For more information or to order, visit https://www.abil.com/green_card.cfm.

E-Verify/Form I-9 Webinars. The Department of Homeland Security is offering free webinars on E-Verify and the Form I-9 process. Upcoming webinars include the “E-Verify Overview,” to be held on Tuesday, September 27, at 2 p.m. EST, and Wednesday, September 28, at 10 a.m. EST; “E-Verify for Existing Users,” to be held on Thursday, September 29, at 11 a.m. EST; “E-Verify for Federal Contractors,” to be held Wednesday, September 28, at 2 p.m. EST; “Form I-9 Webinar,” to be held Thursday, September 22, at 10 a.m. EST; and “E-Verify Self-Check,” to be held Friday, September 16, at 2 p.m. EST, Thursday, September 22, at 2 p.m. EST, and Tuesday, September 27, at 10 a.m. EST. For more information or to register, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=413628ac1dc0c210VgnVCM100000082ca60aRCRD&vgnextchannel=413628ac1dc0c210VgnVCM100000082ca60aRCRD.

GAO report on DHS ten years after 9/11. In a new report, the U.S. Government Accountability Office (GAO) notes that the terrorist attacks of September 11, 2001, led to profound changes in U.S. government agendas, policies, and structures to confront homeland security threats facing the nation. Most notably, the Department of Homeland Security (DHS) began operations in 2003 with key missions that included preventing terrorist attacks from occurring in the U.S., reducing the country’s vulnerability to terrorism, and minimizing the damages from any attacks that may occur. DHS is now the third-largest federal department, with more than 200,000 employees and an annual budget of more than $50 billion. Since 2003, the GAO has issued over 1,000 reports on DHS’s operations in such areas as border and transportation security and emergency management. The report addresses DHS’s progress and challenges in implementing its homeland security missions since it began operations, and issues affecting implementation efforts.

The GAO report is available at http://www.gao.gov/new.items/d11919t.pdf.

Enhancements to DOL enforcement website. The Department of Labor recently updated its enforcement database website. Among other things, the website provides data on Wage and Hour Division (WHD) compliance, such as all concluded WHD compliance actions since FY 2007, including whether any violations were found and the back wage amount, number of employees due back wages, and civil money penalties assessed. See http://ogesdw.dol.gov/raw_data_summary.php.

USCIS Ombudsman upcoming events. The USCIS Ombudsman’s Office plans several upcoming events, including open houses on Monday, September 26, 2011 (4 to 6 p.m.) and Tuesday, September 27, 2011 (12 noon to 2 p.m.). The open houses will feature an informal discussion of the 2011 Annual Report, recent recommendations, the Ombudsman’s Case Assistance Online Pilot Program, and case assistance. Also, the Ombudsman’s first annual conference is scheduled for October 20, 2011. For more information, e-mail [email protected] or call (202) 357-8100.

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10. Member News

ABIL members and firms named to the 2012 “Best Lawyers” list include:

INDIVIDUALS

Francis Chin

Laura Danielson

Steve Garfinkel

Kehrela Hodkinson

Mark Ivener

H. Ronald Klasko

Charles Kuck

Edward Litwin

Robert Loughran

Sharon Mehlman

Cyrus Mehta

Angelo Paparelli

Julie Pearl

William Reich

Steve Trow

Bernard Wolfsdorf

Stephen Yale-Loehr

FIRMS

Chin & Curtis, LLP

FosterQuan, LLP

Fredrikson & Byron, PA

Garfinkel Immigration Law Firm

Klasko, Rulon, Stock & Seltzer, LLP

Kuck Immigration Partners LLC

Larrabee, Mehlman, Albi & Coker LLP

Maggio + Kattar PC

Cyrus D. Mehta & Associates, PLLC

Pearl Law Group

Serotte Reich & Wilson

Trow & Rahal, P.C.

For more information, see http://www.bestlawyers.com/.

Several ABIL members were also named among the “Nation’s 20 Most Powerful Immigration Attorneys” by HR Executive Magazine, including:

H. Ron Klasko

Angelo Paparelli

Julie Pearl

Bernard Wolfsdorf

For the full list, see http://www.humanresourceexecutive-digital.com/humanresourceexecutive/20110616?pg=52#pg52.

Charles Kuck appeared on Fox News on September 4, 2011, to debate immigration “amnesty” programs with Dan Stein of the Federation for American Immigration Reform.

Cyrus Mehta has posted several new blog entries. “Personal Reflections 10 Years After 9/11 As An Immigration Attorney” is available at http://cyrusmehta.blogspot.com/2011/09/reflecting-on-911-after-10-years-as.html. “Going Beyond the Politics of Discretion in the American Immigration System” is available at http://cyrusmehta.blogspot.com/2011/09/going-beyond-politics-of-discretion-in.html.

Angelo Paparelli has posted several new blog entries. “A Decade After 9/11: The Fear of Lax Immigration Enforcement Still Haunts America” is available at ” . “Executive Craftsmanship: Job Creation through Existing Immigration Laws” is available at http://www.nationofimmigrators.com/immigration-reform/executive-craftsmanship-job-creation-through-existing-immigration-laws/.

Stephen Yale-Loehr was quoted in “For Illegal-Immigrant Students, New Policy on Deportations Offers Limited Relief,” published in the Chronicle of Higher Education on September 1, 2011. Commenting on the Obama administration’s new policy to suspend removals for low-risk undocumented students and others, Mr. Yale-Loehr said, “This policy merely continues their legal limbo.” The article is available at http://chronicle.com/article/For-Illegal-Immigrant/128866/?key=T2t2d1RhaiRIZnxlajlEbzdTaXI8ZhkkMCZHbitwblpXFw%3D%3D.

Stephen Yale-Loehr and H. Ronald Klasko spoke at the Invest In the USA association meeting in Washington, DC, on September 15, 2011. Mr. Klasko spoke on current EB-5 policy and administrative issues; Mr. Yale-Loehr spoke on legislative strategy to renew the EB-5 regional center program through Congress. For more information, go to http://iiusadc915.eventbrite.com/.

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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, USCIS Announce Initiative To Promote Startups and Spur Job Creation – Agencies announce efforts to attract foreign entrepreneurial talent to the U.S.

2. ICE Declares ‘Secure Communities’ Mandatory, Not Optional – ICE announced that a memorandum of agreement between ICE and a state is not required to operate Secure Communities in that state.

3. ICE Announces Intention To Withdraw University of Northern Virginia’s SEVP Certification and SEVIS Access for Its Foreign Students – UNVA students must immediately depart the U.S. if they are unable to continue to attend classes and maintain their active status or if they are unable or do not wish to transfer to another SEVP-certified institution.

4. ABIL Global: Training for Professionals in Brazilian Companies: Comparing Normative Resolutions 87 and 88 – Normative Resolutions 87 and 88 are both focused on training people in Brazilian companies but differ in certain aspects.

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

6. Member News – Member News

7. Government Agency Links – Government Agency Links

Details:

1. DHS, USCIS Announce Initiative To Promote Startups and Spur Job Creation

On August 2, 2011, Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas announced a series of “policy, operational, and outreach efforts” to fuel the U.S. economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or those who can create jobs, form startup companies, and invest capital in areas of high unemployment.

The DHS/USCIS announcement noted the following:

• USCIS will conduct internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from a new series of stakeholder engagements.
• The employment-based second preference (EB-2 visa) classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements may be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the U.S. USCIS noted that entrepreneurs may obtain an EB-2 immigrant visa if they satisfy the existing requirements, and also may qualify for a national interest waiver under that visa category if they can demonstrate that their business endeavors will be in the interest of the U.S.
• In response to previous stakeholder feedback, USCIS has updated its existing FAQs to clarify that an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa.
• USCIS is “transforming” the EB-5 immigrant investor intake and review process. In May, USCIS proposed extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on this proposal, USCIS is developing a “phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days” of August 2, 2011.
• As of June 30, 2011, USCIS estimated that the EB-5 program has resulted in more than $1.5 billion in capital investments and created at least 34,000 U.S. jobs.
• Premium processing service is being expanded for immigrant petitions for multinational executives and managers.

Finally, USCIS is launching a new series of engagement meetings for entrepreneurs and startup companies. These meetings will focus on soliciting input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses, and startup companies through its employment-based policies and regulations. USCIS also seeks feedback on examples of the business lifecycle for entrepreneurial ventures, small businesses, and startups, to include initial funding available, typical organizational structure, ownership structure, and payment of salaries; and examples of typical business plans for entrepreneurs and startups.

The DHS/USCIS announcement is at http://www.dhs.gov/ynews/releases/20110802-napolitano-startup-job-creation-initiatives.shtm.

A USCIS FAQ on entrepreneurs and the EB-2 category is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=93da6b814ba81310VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD.

For more information on USCIS’s public meetings, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=ea015fc544007210VgnVCM100000082ca60aRCRD&vgnextchannel=ea015fc544007210VgnVCM100000082ca60aRCRD.

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2. ICE Declares ‘Secure Communities’ Mandatory, Not Optional

U.S. Immigration and Customs Enforcement (ICE) Director John Morton sent a letter on August 5, 2011, to governors terminating all existing Secure Communities memoranda of agreement “to clarify an issue that has been the subject of substantial confusion,” which is that “[a memorandum of agreement (MOA)] between ICE and a state is not required to operate” Secure Communities in that state. In recent months, several state and local jurisdictions had signed MOAs before participating, and some states subsequently attempted to rescind their MOAs.

Noting that participation in the program is not optional, ICE said that “[o]nce a state or local law enforcement agency voluntarily submits fingerprint data to the federal government, no agreement with the state is legally necessary for one part of the federal government to share it with another part.” ICE said it plans to continue expanding the program and hopes to achieve nationwide activation by 2013.

Secure Communities uses an already existing federal information-sharing partnership between ICE and the Federal Bureau of Investigation (FBI). For decades, local jurisdictions have shared the fingerprints of individuals who are booked into jails with the FBI to see if they have a criminal record. Under Secure Communities, the FBI automatically sends the fingerprints to ICE to check against its immigration databases. If these checks reveal that an individual is unlawfully present in the U.S. or otherwise removable due to a criminal conviction, ICE takes enforcement action, prioritizing the removal of individuals who present the most significant threats to public safety as determined by the severity of their crime, their criminal history, and other factors, as well as those who have repeatedly violated immigration laws.

ICE noted that “Secure Communities imposes no new or additional requirements on state and local law enforcement,” and that “the federal government, not the state or local law enforcement agency, determines what immigration enforcement action, if any, is appropriate.”

An example of the letter sent to governors is available at http://uncoverthetruth.org/wp-content/uploads/SGN-RSP-for-Jack-Markell.pdf. For more information on Secure Communities, see http://www.ice.gov/secure_communities/.

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3. ICE Announces Intention To Withdraw University of Northern Virginia’s SEVP Certification and SEVIS Access for Its Foreign Students

On July 28, 2011, following a review of the University of Northern Virginia’s (UNVA) certification, a Student and Exchange Visitor Program (SEVP) representative served school officials at UNVA with a notice of the agency’s intent to withdraw the school’s SEVP-certification and Student and Exchange Visitor Information System (SEVIS) access. Foreign students at UNVA must immediately depart the U.S. if they are unable to continue to attend classes and maintain their active status under the regulations or if they are unable or do not wish to seek transfer to another SEVP-certified institution.

School officials at UNVA no longer have access to SEVIS and will not be able to manage nonimmigrant students’ records in SEVIS. U.S. Immigration and Customs Enforcement (ICE) said that UNVA nonimmigrant students should contact SEVP, as they would their designated school official, to report any changes, so their SEVIS record and Form I-20 (Certificate of Eligibility for Nonimmigrant (F-1) Student Status) can be updated accordingly.

ICE noted that SEVP-certified schools “are subject to a review of their certification at any time based on regulations.” According to news reports, ICE agents came to the UNVA campus on July 28 and confiscated records and computers. Most of UNVA’s students are foreign and the school is reportedly accredited only by the American University Accreditation Council, an entity that the U.S. Department of Education does not recognize. ICE did not explain why it raided the school or its decision to withdraw foreign student certification.

Instructions for University of Northern Virginia foreign students are available at http://www.ice.gov/sevis/unva/.

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4. ABIL Global: Training for Professionals in Brazilian Companies: Comparing Normative Resolutions 87 and 88

Normative Resolution Nos. 87 and 88 are both focused on training people in Brazilian companies. However, even though they have similarities, there are still details that distinguish the procedures and applications for work permits under these resolutions.

Normative Resolution No. 87 allows a visa to a foreign national, linked to a company abroad, for job training by the branch, subsidiary, or Brazilian headquarters belonging to the same economic group. In other words, this work permit, valid for one year (non-extendable), provides for a professional who already belongs to the same economic group of companies to come to Brazil for professional improvement, exchanging information with the Brazilian team and bringing new techniques and knowledge to the company abroad. The foreigner may not necessarily be paid in Brazil and may receive his or her salary from the company abroad.

On the other hand, Normative Resolution No. 88 provides for a visa to a foreigner who comes to Brazil for an internship for one year (extendable for the same period). This means that the foreigner will participate in a supervised educational exchange, developed in the workplace and aimed at preparation for productive work for students who are attending regular classes in institutions of higher education. Also, such foreign nationals may receive financial grants to support their stay in Brazil as well as other benefits under Brazilian internship law. The applicants for this type of permit should go to the Brazilian consular office in their country of origin to apply for this type of visa. They should bring a signed agreement between the assignee, the entity granting the internship, and the Brazilian educational institution.

Thus, both permits are geared toward training professionals, whether they have already graduated (Normative Resolution No. 87) or await graduation (Normative Resolution No. 88). The conditions under which the foreigner national may come to Brazil are what differentiate one from another. In both cases, however, the experience abroad provides an educational exchange and a convenient alternative for those seeking to improve their language skills and grow professionally and personally.

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5. New Publications and Items of Interest

E-Verify Webinars. U.S. Citizenship and Immigration Services is offering a series of free webinars on the employment verification process and E-Verify. Several are scheduled for late August. See http://www.uscis.gov/USCIS/Verification/E-Verify/E-Verify_Native_Documents/E-Verify%20Webinar%20Flyer.pdf for details.

USCIS Ombudsman on change-of-address procedures. USCIS’s Ombudsman recently noted that USCIS, the Department of State, the Executive Office for Immigration Review, and the Department of Labor have separate procedures, filing locations, and timeframes for submitting an address change. A change of address should be reported for each application type, petition, case, and family member with each government agency from which an immigration benefit is being sought. Applicants should use the most permanent address available. The Ombudsman’s Office recommends keeping copies of all correspondence sent to USCIS, using certified, registered, or return receipt mail to ensure documentation of the mailing. See http://www.dhs.gov/files/publications/cisomb-federal-change-of-address-procedures.shtm. The Ombudsman posted filing tips on changes-of-address at http://www.dhs.gov/files/publications/gc_1305649739320.shtm.

Immigrant innovators. Harvard Business School has published “Immigrant Innovators: Job Stealers or Job Creators?” The article looks at recent research on whether the H-1B program helps or hurts U.S. workers. The article found that the H-1B program does not hurt U.S. workers and helps U.S. innovation. The article is available, with reader comments, at http://hbswk.hbs.edu/item/6765.html.

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6. Member News

Cyrus Mehta has posted several new blog entries. “Prevailing Wage Determinations Suspended Until Further Notice: How Do I File a PERM Labor Certification?” discusses steps employers may take to cope with the current delays in processing and to ensure that they are able to timely file their PERM applications and utilize recruitment before it expires or to protect the foreign national’s ability to extend H-1B status in the U.S. “Do We Have a Start-Up Visa Even When Congress Has Not Lifted A Finger?” discusses the August 2, 2011, announcement by DHS/USCIS about efforts to attract foreign entrepreneurial talent, is available at http://cyrusmehta.blogspot.com/2011/08/do-we-have-start-up-visa-for.html.

Mr. Mehta and Charles Kuck were quoted recently in the Washington Post in an article on the August 2, 2011, announcement by DHS/USCIS about efforts to attract foreign entrepreneurial talent. Mr. Mehta said, “Not only did the USCIS director have to probably override some of his own staffers and skeptics, but Mayorkas also did this administratively when Congress is in a stalemate.” Mr. Kuck expressed concerns about “the anti-business attitude of the vast majority of the adjudicators, who would rather find reasons to deny legitimate cases and chase off investment and jobs than approve them.” He noted, “We’ll know how serious the government is about supporting entrepreneurs when new applications are filed.” The article is available at http://www.washingtonpost.com/national/on-immigration-a-step-in-the-right-direction/2011/08/03/gIQA2bGgsI_story.html.

Angelo Paparelli has posted several new blog entries. “End the Tyranny of Immigration Insubordination,” which notes among other things that “[l]ofty statements about supporting small business and spurring immigration-juiced job creation are only vaporous platitudes without parallel actions to make sure the troops on the ground follow orders,” is available at http://www.nationofimmigrators.com/immigration-reform/end-the-tyranny-of-immigration-insubordination/. “Immigration Thought Leadership – Needed Now More Than Ever” is available at http://www.nationofimmigrators.com/immigration-reform/immigration-thought-leadership—needed-now-more-than-ever/.

Stephen Yale-Loehr was quoted in the August 2, 2011, edition of the Wall Street Journal. Commenting on USCIS’ efforts to attract foreign entrepreneurial talent, Mr. Yale-Loehr said, “The Obama administration is getting the immigration system engaged in creating jobs. They are trying to facilitate the ability of entrepreneurs to get temporary work visas and green cards when the economy is in the doldrums.”

Mr. Yale-Loehr also was quoted in Bloomberg Businessweek. In comments on the EB-5 program, he said, “This is a unique way for immigration to enhance the U.S. economy … at no expense to the U.S. taxpayer.”

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7. Government Agency Links

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

USCIS Service Center processing times online

Department of Labor processing times and information on backlogs

Department of State Visa Bulletin

Visa application wait times for any post

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Headlines:

1. USCIS Changes Timeframes for RFEs – Among other things, the maximum response time for an RFE may not exceed 12 weeks (84 days).

2. USCIS Submits Revision of Basic Pilot Verification MOU to OMB for Review – Comments will be accepted until September 12, 2011.

3. DOS Determines Employment Preference Numerical Limit for FY 2011 – The worldwide employment-based preference numerical limit for fiscal year (FY) 2011 is 140,000.

4. DOS Announces Visa Issuance Agreement Between U.S. and Russian Federation – The new agreement concerns the issuance of nonimmigrant business, tourist, private, and humanitarian visas to the Russian Federation, and business and tourist visas to the U.S., as well as short-term official travel visas to both countries.

5. DOL Orders Prince George’s County Public Schools To Pay $4.2 Million in Back Wages – An investigation by the Department of Labor found Maryland’s Prince George’s County Public Schools system in violation of the H-1B program.

6. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience for the July 6 webinar includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.

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

8. Member News – Member News

9. Government Agency Links – Government Agency Links

Details:

1. USCIS Changes Timeframes for RFEs

U.S. Citizenship and Immigration Services (USCIS) previously gave agency officers the flexibility to determine individual response times for requests for evidence (RFEs) tailored to the circumstances of each case. USCIS released an interim policy memorandum on July 13, 2011, changing the standard timeframes for applicants or petitioners to respond to RFEs because, the agency said, “this delegated flexibility has led to inconsistencies in the RFE process.”

USCIS is amending the standard timeframes listed in Appendix 10-9 of the Adjudicator’s Field Manual (AFM) to include:

• A standard timeframe of 30 days for the Application to Extend/Change Nonimmigrant Status (Form I-539); and
• A standard timeframe of 84 days for all other form types, regardless of whether the request is for initial or additional evidence, or whether the evidence is available in the United States or is obtained from overseas sources.

The maximum response time for an RFE may not exceed 12 weeks (84 days), the memo states. However, when an RFE is served by mail, USCIS officers should include additional mailing time for the RFE to reach the applicant/petitioner and for the response to reach USCIS. The standard mailing time established by regulation is three days. As a matter of policy, USCIS has determined that the mailing time should be longer when the applicant or petitioner is residing outside the U.S. USCIS amended the AFM accordingly to include appropriate mailing times in addition to standard response times.

The memo does not apply to asylum applications or applications for relief under Section 203 of the Nicaraguan Adjustment and Central American Relief Act.

The memo is available at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Interim%20Guidance%20for%20Comment/change-timeframes-rfe.pdf.

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2. USCIS Submits Revision of Basic Pilot Verification MOU to OMB for Review

U.S. Citizenship and Immigration Services (USCIS) submitted for Office of Management and Budget review the memorandum of understanding (MOU) to participate in the Basic Pilot Employment Eligibility Program. USCIS is encouraging comments, which will be accepted until September 12, 2011.

USCIS estimates that 125,015 respondents will complete the MOU, and that 521,134 employers will register to participate in the program.

For more information on the revision and where to send comments, see http://www.gpo.gov/fdsys/pkg/FR-2011-07-13/pdf/2011-17546.pdf.

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3. DOS Determines Employment Preference Numerical Limit for FY 2011

The Department of State (DOS) has determined the worldwide employment-based preference numerical limit for fiscal year (FY) 2011: 140,000. The per-country limit is fixed at 7 percent of the employment annual limit. For FY 2011, the per-country limit is 25,620. The dependent area annual limit is 2 percent, or 7,320.

The worldwide family-sponsored preference limit for FY 2011 is 226,000. See the DOS’s Visa Bulletin for August 2011 for details at http://www.travel.state.gov/visa/bulletin/bulletin_5518.html.

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4. DOS Announces Visa Issuance Agreement Between U.S. and Russian Federation

On July 13, 2011, U.S. Secretary of State Hillary Rodham Clinton and Russian Foreign Minister Sergey Lavrov announced an agreement on the issuance of nonimmigrant business, tourist, private, and humanitarian visas to the Russian Federation, and on business and tourist visas to the U.S., as well as short-term official travel visas to both countries.

The agreement will facilitate travel between the two countries and, DOS said, “benefits the largest segments of our traveling Americans and Russians – business travelers and tourists, traveling both as individuals and in groups, by granting as a rule, on a reciprocal basis, multiple-entry visas valid for 36 months.” The agreement also reduces the documentation required.

The new visa validity periods “will allow for expanded contacts and promote greater mutual understanding between our societies,” DOS said. This agreement will go into effect after an exchange of diplomatic notes in Moscow.

The DOS announcement is available at http://www.state.gov/r/pa/prs/ps/2011/07/168346.htm.

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5. DOL Orders Prince George’s County Public Schools To Pay $4.2 Million in Back Wages

An investigation by the Department of Labor’s (DOL) Wage and Hour Division found Maryland’s Prince George’s County Public Schools (PGCPS) system in violation of the H-1B temporary foreign worker visa program.

DOL investigators found that PGCPS illegally reduced the wages of 1,044 foreign teachers hired under the H-1B program by requiring them to use their own money to pay a $500 anti-fraud fee to the Department of Homeland Security, as well as a $1,000 attorney’s fee and a $3,500 placement fee. DOL held that under federal law, the school district should have paid those fees.

“All employers, including school systems, are required to follow the law. That includes the legal duty to pay every teacher hired the full wages he or she is owed,” said Nancy J. Leppink, acting administrator of the Wage and Hour Division.

Due to the willful nature of some of the violations, PGCPS also was assessed $100,000 in civil money penalties and was debarred for two years from filing new petitions, requests for extensions, or requests for permanent residence for foreign workers under any employment-based visa program. DOL noted that “[v]iolations are willful when an employer knew or acted in reckless disregard [of] whether its actions were impermissible.”

Some H-1B employers may be unaware of which fees they must pay and which fees an H-1B worker may pay. Consult your ABIL attorney for guidance on this issue.

The DOL’s news release is available at http://www.dol.gov/opa/media/press/whd/whd20110357.htm.

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6. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, but each has advantages, disadvantages, and limits.

A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies:

• Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
• Session 2: EB-5 regional center applications and project pre-approval petitions, was held July 6 at 3 p.m. (ET). (A recording of the webinar is available for purchase.) Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
• Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 p.m. (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before each session, as well as a recording of the webinar. The cost is $89 for an individual session or $249 for all three sessions, live or recorded. For more information, see https://www.abil.com/news_detail.cfm?NEWS_ID=96. To register, go to: https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, contact Lauren Anderson at [email protected] or visit https://abil.com.

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7. New Publications and Items of Interest

Analysis of H.R. 2164, the Legal Workforce Act. The National Foundation for American Policy has released a policy brief, “We Should Trust, But Not E-Verify: An Analysis of H.R. 2164,” which argues that “H.R. 2164, the Legal Workforce Act, would make the American workplace less free, ensnare U.S. workers in government agency errors, expand the size and role of government and is likely to be ineffective in reducing the illegal immigration population in the United States.” Among other things, the policy brief notes that the Congressional Budget Office (CBO) estimated that mandating E-Verify nationwide would increase federal spending by approximately $6 billion from 2009 to 2013 and by about $12 billion from 2009 to 2018. The brief states that the CBO estimated the 2008 bill would lead to a decline of $17 billion in tax revenue over 10 years, caused primarily by pushing undocumented workers into the underground economy.

The policy brief is available at http://www.nfap.com/pdf/EVerify_NFAP_Policy_Brief_July2011.pdf.

Boosting the economic contribution of employment-based immigration. The Migration Policy Institute has released “Eight Policies to Boost the Economic Contribution of Employment-Based Immigration” by Demetrios G. Papademetriou and Madeleine Sumption. Drawing on experiences from Asia, Europe, North America, and the Pacific region, the policy memo presents eight strategies developed by immigrant-receiving countries to increase the economic contribution of employment-based immigration. These policies “represent best practices that policymakers can rely on to create effective and efficient economic-stream immigration systems,” the memo states. The policies discussed “focus on selecting immigrants with a range of skill levels, retaining those with the greatest potential to succeed, engaging employers constructively in the immigration process, and facilitating immigrant integration.”

The policy memo is available at http://www.migrationpolicy.org/pubs/competitivenessstrategies-2011.pdf.

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8. Member News

H. Ronald Klasko and Stephen Yale-Loehr will speak at the Invest In the USA association meeting in Washington, DC, on September 15, 2011. Mr. Klasko will speak on current EB-5 policy and administrative issues; Mr. Yale-Loehr will speak on legislative strategies to renew the EB-5 regional center program through Congress. For more information, go to http://iiusadc915.eventbrite.com/.

Cyrus Mehta recently published “Right to Appointed Counsel in Removal Proceedings? The Supreme Court May Have Opened the Door in Turner v. Rogers,” which argues that Turner v. Rogers can be used favorably by immigration advocates seeking to establish a right to appointed counsel in immigration removal proceedings. It is available at http://www.cyrusmehta.com/News.aspx.

Mr. Mehta also recently released a new blog entry, “Immigration Lessons from the Fall and Rise of Strauss-Kahn, Part II,” available at http://cyrusmehta.blogspot.com/2011/07/immigration-lessons-from-fall-and-rise.html.

Angelo Paparelli has posted a new blog entry, “Race to the EAD: Revitalizing Depressed American Cities Through State Immigration Initiatives.” The blog suggests an initiative to allow states to submit economic revitalization proposals under which federally approved projects would allow promising and worthy nonimmigrant and conditional immigrant investors and entrepreneurs, as well as state-recommended recipients of deferred action, to obtain a renewable EAD in reasonable time period increments. The blog is available at .

Mr. Paparelli also recently co-authored “Global Mobility Management – A Primer for Chief Legal Officers and HR Executives,” available at http://www.whoswholegal.com/news/features/article/28998/global-mobility-management-primer-chief-legal-officers-hr-executives/.

Bernard Wolfsdorf was named corporate immigration lawyer of the year for the second year in a row by Who’s Who Legal. For more information, see http://www.whoswholegal.com/news/features/article/29126/an-interview-bernie-wolfsdorf-corporate-immigration-award-winner-2011/.

The new Chambers Global 2011 lists several members of the Alliance of Business Immigration Lawyers (ABIL) in its North America section, including:

• Mark Ivener
• H. Ronald Klasko
• Charles Kuck
• Sharon Mehlman
• Angelo Paparelli
• Bernard Wolfsdorf
• Stephen Yale-Loehr

Go to http://www.chambersandpartners.com/Global to search for a particular lawyer. Chambers USA 2011 is now also online; go to http://www.chambersandpartners.com/USA to search for a particular lawyer.

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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: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/bulletin/bulletin_1360.html

Visa application wait times for any post: http://travel.state.gov/visa/temp/wait/wait_4638.html

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Headlines:

1. ‘B-1 in Lieu of H-1B’ Option Under Threat – The Department of State is discussing with the Department of Homeland Security removing or substantially modifying the B-1 in lieu of H-1B option.

2. NLRB Updates Immigration Status Procedures During NLRB Proceedings – A new memorandum from the National Labor Relations Board (NLRB) provides a brief introduction to immigration status issues and an update on how such issues should be addressed during NLRB investigations and proceedings.

3. How to Protect Personal Data in Redesigned Green Card – USCIS provides a foil envelope encasing the new card, and advises permanent residents to keep the card in the envelope at all times to prevent unwanted wireless communication with the RFID chip.

4. USCIS Ombudsman Issues Advice to Employers on Documenting the ‘Temporary’ Nature of H-2B Work – The Ombudsman has provided information in response to reports that USCIS is issuing RFEs in H-2B nonagricultural worker cases that question the claimed “temporary” nature of an employer’s business need for foreign labor.

5. Around the States: Alabama, Arizona, Massachusetts – A variety of harsh enforcement measures have gained ground in several states.

6. ICE Authorizes Employment Eligibility for Certain Libyan Students – U.S. Immigration and Customs Enforcement (ICE) has announced special temporary relief until December 31, 2011, for certain F-1 Libyan students who have suffered severe economic hardship as a direct result of the civil unrest in Libya since February 2011.

7. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.

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

9. Member News – Member News

10. Government Agency Links – Government Agency Links

Details:

1. ‘B-1 in Lieu of H-1B’ Option Under Threat

Amid reports that U.S. consulates (particularly in India) are cracking down on B-1 visa applications when they suspect the person may be “working” in the U.S., the Department of State and U.S. Immigration and Customs Enforcement are reportedly investigating Infosys Technologies Ltd. with respect to allegations that it may be using short-term B-1 visas for employees who should be subjected to the more difficult H-1B visa process. Infosys said it “received a subpoena from a grand jury in the United States District Court for the Eastern District of Texas. The subpoena requires us to provide information to the grand jury regarding our sponsorships for, and uses of, B-1 business visas.”

The probe comes on the heels of a lawsuit filed by an Infosys employee alleging that Infosys has been misusing the B-1 visa program. After the lawsuit was filed, Sen. Chuck Grassley (R-Iowa) sent a letter on April 14, 2011, to Secretary of State Hillary Clinton and Secretary of Homeland Security Janet Napolitano demanding an investigation. The Department of State responded on May 13, and Sen. Grassley issued a comment on May 25. The Department of State said, “We are in the process of discussing with [the Department of Homeland Security] removing or substantially modifying the B-1 in lieu of H guidelines, which State first proposed eliminating in a 1993 Federal Register notice.” The letter says such a change “requires DHS coordination and may require Federal Register notice, thus it may take some time before…any change is implemented.”

Sen. Grassley’s April 14 letter and May 25 comment are available at http://grassley.senate.gov/news/Article.cfm?customel_dataPageID_1502=34705. The Department of State’s response is available at http://grassley.senate.gov/judiciary/upload/Immigration-05-24-11-response-from-State-using-B-1-to-circumvent-H-1B-doc.pdf.

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2. NLRB Updates Immigration Status Procedures During NLRB Proceedings

A new memorandum from the National Labor Relations Board (NLRB) provides a brief introduction to immigration status issues and an update on how such issues should be addressed during NLRB investigations and proceedings. The memo notes that the National Labor Relations Act (NLRA) protects all employees covered by the NLRA regardless of immigration status, but that immigration status issues may affect remedies and occasionally present other practical difficulties with respect to enforcement of the NLRA.

Supplementing earlier guidance (GC 02-06, available at http://www.lawmemo.com/nlrb/gc02-06.htm), the new memo provides further guidance for proceeding when immigration status issues arise during NLRB case handling. It also identifies immigration agencies that have discretion to provide immigration remedies and other assistance to discrimination victims or witnesses in NLRB proceedings. Among other things, the memo notes:

• NLRB officials generally should presume -that employees are lawfully authorized to work. They should refrain from conducting a sua sponte immigration investigation and should object to questions concerning the discriminatee’s immigration status at the merits stage.
• NLRB officials should investigate the discriminatee’s immigration status only after a respondent establishes the existence of a genuine issue (during the remedial stage).
• NLRB officials should conduct an investigation by asking the union, the charging party, and/or the discriminatee to respond to the employer’s evidence.
• NLRB officials should consult GC 02-06 for additional direction.

The memo notes that NLRB discriminatees, witnesses, or voting-eligible employees may be taken into custody by immigration officials. In addition, immigration status may be inextricably intertwined with an unfair labor practice, such as where immigration threats or related conduct are the basis of the unfair labor practice allegation. Or the issue may be as simple as an employee volunteering information about immigration status or asking NLRB officials for immigration advice or assistance.

NLRB officials “should not provide immigration advice,” the memo notes. “Resolution of these issues is best addressed when employees can obtain immigration advice through their union or from an independent immigration attorney.” NLRB officials may refer interested persons to the list of accredited immigration services providers maintained by the Department of Justice and found at http://www.justice.gov/eoir/statspub/raroster.htm. The memo notes that individuals sometimes are mistaken about their immigration status and NLRB officials should not assume that immigration status information volunteered by an unrepresented person is correct.

The memo also notes that in certain cases where immigration status is of particular significance, the agency may decide to seek the assistance of one of the three immigration agencies (U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, or U.S. Customs and Border Patrol) to advance the effective enforcement of the NLRA. Such agencies may assist in providing visa remedies, deferring immigration actions during the pendency of the NLRB proceeding, and/or releasing individuals from custody or providing access to witnesses in custody.

The June 7, 2011, memo is available at http://mynlrb.nlrb.gov/link/document.aspx/09031d458049525b.

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3. How to Protect Personal Data in Redesigned Green Card

One of USCIS’s recent improvements to the green card is an embedded Radio Frequency Identification (RFID) chip that allows U.S. Customs and Border Protection (CBP) officers at ports of entry to read personal data embedded in the card from a distance and compare it immediately to personal data on file. Additionally, the RFID chip adds a level of security to confirm that the card has not been tampered with, and makes it more difficult to counterfeit cards.

USCIS provides a foil envelope encasing the new card, and advises permanent residents to keep the card in the envelope at all times to prevent unwanted wireless communication with the RFID chip. Because the RFID chip can be scanned by any RFID scanner within a reasonable distance, the envelope is needed to block the effective range of the chip, reducing the possibility that personal data may be electronically “pick-pocketed.”

CBP has implemented “Ready Lane” pilot programs at various ports of entry, including El Paso and Donna, Texas, and Otay Mesa, California. RFID technology expedites travel across the land border because CBP officers do not have to manually enter traveler information during the primary inspection. Thus, RFID-enabled travel documents reduce the time it takes to process travelers at the border.

To use Ready Lane, travelers should follow three simple steps as they approach a U.S. land port of entry with their RFID-enabled green card: (1) stop at the entry to the inspection lane and wait for a signal to move forward; (2) remove the green card from its protective envelope and hold it up with the flat front face of the card toward a window on the driver’s side. The RFID chip will be read automatically while the vehicle proceeds to the inspection booth; and (3) stop at the inspection booth and be prepared to present documents for all travelers in the vehicle to the CBP officer.

For more information about the redesigned green card, see the USCIS fact sheet and card image at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=34233893c4888210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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4. USCIS Ombudsman Issues Advice to Employers on Documenting the ‘Temporary’ Nature of H-2B Work

U.S. Citizenship and Immigration Services’ (USCIS) Ombudsman has provided information in response to reports that USCIS is issuing Requests for Evidence (RFEs) in H-2B nonagricultural worker cases that question the claimed “temporary” nature of an employer’s business need for foreign labor.

The Ombudsman explained that employers seeking to participate in this program must establish to USCIS’s satisfaction that their need for temporary non-agricultural services or labor is either seasonal, due to a peakload need, intermittent, or a one-time occurrence. While temporary needs of a significant length may be approved as a one-time occurrence, the petitioner’s business need must be temporary, such as 10 months or less, the Ombudsman said. H-2B workers are commonly employed in the landscaping, hotel, recreation, and forestry industries based upon seasonal need.

To establish seasonal need, the Ombudsman noted, petitioners must show that the service or labor is related to a season of the year by an event or pattern that recurs annually. “It is recommended that petitioners also specify the period(s) of time during each year in which they do not need the services or labor,” the Ombudsman said.

H-2B petitions are by their nature time sensitive, and petitioners are on tight time schedules for filing their submissions with the Department of Labor (DOL) and USCIS. Delays in submission or processing can have serious financial consequences for employer petitioners.

To minimize the likelihood of receiving an RFE, the Ombudsman suggested that petitioners may want to support their initial submissions to USCIS with additional documentation “that clearly demonstrates that a specific work need covered by the petition is temporary, tied to a predictable peakload period or is seasonal, and will reoccur annually on the same or similar cycle.”

USCIS told the Ombudsman that it also would be helpful to include with the H-2B petition:

• Signed work contracts, letters of intent from clients, and monthly invoices from previous calendar year(s) clearly depicting the type and regularity of work that was, or will be, performed during each month of the requested period of need.
• Summarized monthly payroll records/reports over the past two calendar years that clearly identify and separately distinguish the petitioner’s permanent employee staff from its temporary H-2B staff in the requested occupation.
• Any other documentation (e.g., work schedules, company provided housing, transportation records) that evidences the cyclical trend of seasonal temporary hires, and that clearly reveals gap periods that fall between such seasons.

The Ombudsman’s update is available at http://www.dhs.gov/files/publications/gc_1305648318975.shtm.

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5. Around the States: Alabama, Arizona, Massachusetts

A variety of harsh enforcement measures have gained ground in several states:

Alabama. Alabama’s Governor Robert Bentley signed a new bill, HB 56 (“Beason-Hammon Alabama Taxpayer and Citizen Protection Act”), which requires employers doing business with Alabama to use E-Verify, beginning in 2012, and ties it to state economic incentives. The employer’s business license may be suspended if it fails to comply.

The law states that Alabama “finds that illegal immigration is causing economic hardship and lawlessness in this state and that illegal immigration is encouraged when public agencies within this state provide public benefits without verifying immigration status.” The law therefore includes a number of other enforcement provisions, such as requiring public schools to determine the citizenship and immigration status of students enrolling.

Wade Henderson, president and CEO of the Leadership Conference on Civil and Human Rights, said the law “is designed to do nothing more than terrorize the state’s Latino community.” He said the only possible end result of HB 56 “is a permanent, largely Latino underclass in Alabama that would be driven even further into the shadows of society.”

The text of HB 56 is available at http://e-lobbyist.com/gaits/AL/HB56.

Arizona. On May 26, 2011, the U.S. Supreme Court in Chamber of Commerce v. Whiting upheld the Legal Arizona Workers Act, requiring all Arizona employers to use E-Verify and suspending or revoking the licenses of employers who knowingly or intentionally hire unauthorized workers.

At issue in the case was whether the federal employment sanctions regime under the Immigration Reform and Control Act of 1986 (IRCA) preempted states like Arizona from enacting similar immigration-related legislation that would sanction employers who hire unauthorized workers. Section 274A of the Immigration and Nationality Act, which was introduced by IRCA, prohibits the hiring or the continuing employment of unauthorized workers.

Although IRCA preempted states from imposing criminal or civil sanctions on employers relating to the hiring of unauthorized workers, it created an exception with respect to “licensing and similar laws,” which states could still regulate.

The Supreme Court held that the Legal Arizona Workers Act fell within the “licensing and similar laws” exception of IRCA and rejected arguments that the law was not truly a licensing law or that it conflicted with IRCA.

The Supreme Court decision will impact businesses that operate in Arizona and other states with similar laws. They will need to comply with a hodgepodge of employer compliance laws with respect to hiring workers. Furthermore, Chamber of Commerce v. Whiting will encourage other states to enact similar laws and to make E-Verify mandatory when hiring any worker, as Alabama has done. Because the Supreme Court’s ruling is narrow and revolves around the “licensing and similar laws” exception, it is not clear whether the Court will uphold the constitutionality of broader state legislation, such as Arizona’s SB 1070, whose most controversial provisions have thus far been found to be unconstitutional in the Ninth Circuit.

The full decision in Chamber of Commerce v Whiting is available at: http://www.supremecourt.gov/opinions/10pdf/09-115.pdf. For a summary, see http://www.lexisnexis.com/community/litigationresourcecenter/blogs/litigationblog/archive/2011/05/26/a-summary-of-the-supreme-court-s-ruling-on-the-legal-arizona-workers-act.aspx .

Massachusetts. An official speaking anonymously reported that the U.S. government plans to require Massachusetts to participate in the Secure Communities program. Governor Deval Patrick had refused to support it, although his administration had pledged to sign a Secure Communities agreement. The program includes name and fingerprint checks of offenders against federal immigration and criminal databases. It is now being piloted in 42 states.

In a letter to U.S. Immigration and Customs Enforcement dated June 3, 2011, Massachusetts’ Public Safety Secretary Mary Heffernan said that Gov. Patrick would not sign a memorandum of agreement. The letter notes that only about one out of four of those removed from the U.S. since the inception of Boston’s pilot participation in Secure Communities were convicted of a serious crime, and more than half of those removed were identified as “non-criminal.” Ms. Heffernan said this indicated that Secure Communities does not achieve the objective of focusing on the identification and removal of those convicted of serious criminal offenses. Ms. Heffernan said, “The Governor and I are dubious of the Commonwealth taking on the federal role of immigration enforcement. We are even more skeptical of the potential Secure Communities could have on the residents of the Commonwealth. The letter concludes, “We are reluctant to participate if the program is mandatory and unwilling to participate if it is voluntary.”

Other governors refusing to sign Secure Communities memoranda of agreement include Gov. Andrew Cuomo of New York and Pat Quinn of Illinois.

Ms. Heffernan’s letter is available at http://altopolimigra.com/documents/Acting-Director-Rapp-6.3.11.pdf.

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6. ICE Authorizes Employment Eligibility for Certain Libyan Students

U.S. Immigration and Customs Enforcement (ICE) has announced special temporary relief until December 31, 2011, for certain F-1 Libyan students who have suffered severe economic hardship as a direct result of the civil unrest in Libya since February 2011.

ICE has published a notice in the Federal Register suspending certain regulatory requirements to allow eligible Libyan F-1 students to obtain employment authorization, work an increased number of hours during the school term, and, if necessary, reduce their course load while continuing to maintain their F-1 student status.

Approximately 2,000 F-1 students from Libya are enrolled in schools in the U.S. This relief applies only to students who were lawfully present in the U.S. in F-1 status as of February 1, 2011, and enrolled in an institution certified by ICE’s Student and Exchange Visitor Program (SEVP). The notice applies to both undergraduate and graduate students, as well as elementary school, middle school, and high school students. The notice, however, applies differently to elementary school, middle school, and high school students, as discussed in the notice.

An ICE fact sheet is available at http://www.ice.gov/news/library/factsheets/libyan-student-employment.htm. The Federal Register notice is available at http://www.gpo.gov/fdsys/pkg/FR-2011-06-10/pdf/2011-14482.pdf.

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7. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the United States, but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, but each has advantages, disadvantages, and limits.

A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies:

• Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
• Session 2: EB-5 regional center applications and project pre-approval petitions, to be held July 6 at 3 p.m. (ET). Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
• Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 p.m. (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

All participants will receive a file with the PowerPoint presentation, relevant articles, and resources before each session, as well as a recording of the webinar. The cost is $89 for an individual session or $249 for all three sessions, live or recorded. To register, go to: https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, contact Lauren Anderson at [email protected] or visit https://abil.com.

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8. New Publications and Items of Interest

Immigrant skills in U.S. metro areas. A new report by the Brookings Institution’s Metro Policy Program, “The Geography of Immigrant Skills: Educational Profiles of Metro Areas,” finds that immigrants in the U.S. who have a bachelor’s degree now outnumber those without a high school diploma. In 1980, just 19 percent of immigrants aged 25 to 64 held a bachelor’s degree, the report notes, and nearly 40 percent had not completed high school. By 2010, 30 percent of working-age immigrants had at least a college degree and 28 percent lacked a high school diploma. The report also notes that 44 of the nation’s 100 largest metropolitan areas are high-skill immigrant destinations, in which college-educated immigrants outnumber immigrants without high school diplomas by at least 25 percent. These destinations include Washington, DC, and large coastal metro areas like San Francisco. The 30 low-skill destinations, in which the relative sizes of these immigrant skill groups are reversed, include many in the border states of the West and Southwest, as well as in the Great Plains.

The report argues that a pragmatic approach to immigration “should include a more flexible admissions system to respond to labor market changes.” With the United States at a critical point in both immigration policy and economic trajectory, the report notes, “policymakers should carefully weigh options to provide support for immigrant workers at all skill levels to keep the United States globally competitive.”

The report is available at http://www.brookings.edu/~/media/Files/rc/papers/2011/06_immigrants_singer/06_immigrants_singer.pdf.

Business representatives conference. USCIS’s Texas Service Center (TSC) will host a Business Representatives Conference on Wednesday, July 13, 2011. TSC will also offer scheduled tours of the Lewisville Lockbox facility on the Tuesday afternoon before and the Thursday morning after the conference. If you plan to attend, please RSVP to [email protected].

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9. Member News

Many members of the Alliance of Business Immigration Lawyers (ABIL) (both U.S. and Global) were named in the “International Who’s Who of Corporate Immigration Lawyers 2011,” including:

• Eugene Chow (bio: https://www.abil.com/lawyers/lawyers-chow.cfm?c=HK)
• Kehrela Hodkinson (bio: https://www.abil.com/lawyers/lawyers-hodkinson.cfm?c=US)
• H. Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm?c=US)
• Marco Mazzeschi (bio: https://www.abil.com/lawyers/lawyers-mazzeschi.cfm?c=IT)
• Sharon Mehlman (bio: https://www.abil.com/lawyers/lawyers-mehlman.cfm?c=US)
• Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm?c=US)
• Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US)
• Bernard Wolfsdorf (bio: https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm?c=US)
• Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US)

Robert Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm?c=US) was commended to researchers for “Who’s Who” as a “top-tier practitioner.”

For the “Who’s Who” list, including search fields, see http://www.whoswholegal.com/news/analysis/article/28997/most-highly-regarded-firms-corporate-immigration-2011/.

Also, the new Chambers Global 2011 lists various ABIL members in its North America section, including Mark Ivener (bio: https://www.abil.com/lawyers/lawyers-ivener.cfm?c=US), Mr. Klasko, Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm?c=US), Mr. Paparelli, Mr. Wolfsdorf, and Mr. Yale-Loehr. Go to http://www.chambersandpartners.com/Global to search for a particular lawyer. Chambers USA 2011 is now also online; go to http://www.chambersandpartners.com/USA to search for a particular lawyer.

Charles Kuck has posted an analysis of Georgia’s new HB 87 immigration law, “HB 87: The ‘Illegal Immigration Reform and Enforcement Act of 2011’ — Arizona-Style Legislation — What Does It Mean for You?”, at http://www.immigration.net/hb87.

Mr. Loughran spoke at the Gulf Coast Symposium on HR Issues in May 2011. The topic was “Global Immigration: Short-Term, Technical, and Offshore Work in the Oil & Gas Industry.” He was also quoted in a cover story on Mexican immigrant investors in the Austin American Statesman on June 4, 2011.

Ms. Mehlman will speak on a panel, “PERM Labor Certification: The Long and Winding Road to ‘PERM’ Residency and How to Get There,” on June 18, 2011, at the American Immigration Lawyers Association’s (AILA) annual conference in San Diego, California.

Ms. Mehlman also spoke on June 6 on “Worksite Criminal Cases” at the Rock Center for Corporate Governance at Stanford’s Worksite Immigration Compliance Symposium.

Mr. Mehta was presented with the 2011 Michael Maggio Memorial Pro Bono Award for his outstanding efforts in providing pro bono representation in the immigration field. Mr. Mehta has most recently been Chair of the American Immigration Lawyers Association’s (AILA) National Pro Bono Committee (2009-2011) and past Co-Chair of the AILA New York Chapter Pro Bono Committee (2007-2010). Under his leadership, AILA launched its first Annual Conference Pro Bono Clinic in San Diego, California, in 2011. In collaboration with the New York City Bar Association, Mr. Mehta and the AILA New York City Chapter launched the New York City Immigrant Advocacy Initiative to provide brief service clinics on a regular basis. Also in partnership with the New York City Bar, Mr. Mehta and the AILA Chapter joined with Legal Aid to create the Varick Street N.Y. Immigration Court project to represent detained immigrants. Mr. Mehta also currently serves on the Board of Directors of Volunteers of Legal Services, Inc. (VOLS), whose mission is to provide pro bono civil legal services to benefit poor people in New York City. With his assistance, VOLS has expanded its pro bono efforts to reach immigrant children and their parents in the public school system.

Mr. Mehta has posted several new blog entries. “BALCA Gets It Right!! Recruitment and the Prevailing Wage Determination’s Validity Period” discusses the Board of Alien Labor Certification Appeals’ decision in Matter of Horizon Computer Services, Inc., and is available at http://cyrusmehta.blogspot.com/2011/06/balca-gets-it-right-recruitment-and.html. “If Even the Chief Justice Can Misunderstand Immigration Law, How Can We Expect States To Enforce It Properly? Removal Orders and Work Authorization,” written by Mr. Mehta’s associate, David Isaacson, discusses the Supreme Court’s decision in Chamber of Commerce v. Whiting upholding an Arizona law that imposed sanctions on employers for hiring unauthorized workers, and the aspects of ways in which someone who has been ordered removed from the U.S. may have valid employment authorization. It is available at http://cyrusmehta.blogspot.com/2011/06/if-even-chief-justice-can-misunderstand.html. “B-1 in Lieu of H-1B Visa in Jeopardy: Don’t Throw the Baby Out With the Bathwater,” which Mr. Mehta co-wrote, is available at http://cyrusmehta.blogspot.com/2011/05/b-1-in-lieu-of-h-1b-visa-in-jeopardy.html.

Mr. Mehta was quoted by FINS Technology (part of the Wall Street Journal Digital Network) in an article on June 24, 2011, “American Dream Fades for H-1B Hopefuls.” He noted that the H-1B process “is costly, fees have gone up, employers have to pay lawyers’ fees, and there are far more compliance issues.” The article is available at http://it-jobs.fins.com/Articles/SB130652363641519729/American-Dream-Fades-for-H-1B-Hopefuls?link=FINS_hp.

Mr. Paparelli has posted several new blog entries. “First, Do No (Immigration) Harm (to Business Visitors),” which discusses the “B-1 in lieu of H-1B” option and Sen. Charles Grassley’s efforts to eliminate it, is available at http://bit.ly/jkQ5ti. “10 Immigration Predictions: The Foreseeable Consequences of the Supreme Court’s Arizona E-Verify Decision,” is available at http://bit.ly/kAUC2F.

Mr. Wolfsdorf was presented with the American Immigration Lawyers Association’s (AILA) Service Excellence Award for 2011. AILA said, “Over the years, Mr. Wolfsdorf has had a major impact on the practice of immigration law and he has demonstrated a long history of commitment to AILA. He is dedicated to AILA’s mission of promoting justice, advocating for fair and reasonable immigration law and policy, and enhancing the professional development of its members. He has held numerous positions in AILA and has put in thousands of volunteer hours for the association and its members.” Mr. Wolfsdorf is Managing Partner of the top-rated Wolfsdorf Immigration Law Group, with offices in Los Angeles and New York. He has been a California State Bar-Certified Specialist in Immigration and Nationality Law for over 20 years and was named “Immigration Lawyer of the Year” in 2010 and again in 2011 by the International Who’s Who of Business Lawyers. The announcement is available at http://www.aila.org/content/default.aspx?docid=35890.

Mr. Yale-Loehr has joined the New York State Bar Association’s Special Immigration Committee, whose work includes activities such as creating written standards for immigration representation and methods to publicize and enforce those standards; providing specialized training and CLEs with regular updates; creating pro bono opportunities and resources; and improving immigration referral services across the state of New York.

Mr. Yale-Loehr was quoted in a recent Wall Street Journal article on the “B-1 in lieu of H-1B” option: “As Congress has made the H-1B visa category more expensive and more difficult to obtain, companies have searched for alternatives. The B-1 is one such alternative.” The article is available at http://online.wsj.com/article/SB10001424052702304520804576343070058872708.html#ixzz1NMUgPTXH.

Mr. Yale-Loehr will speak on the advanced panel concerning EB-5 immigrant investors on June 18, 2011, at the American Immigration Lawyers Association’s annual conference in San Diego, California.

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10. Government Agency Links

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

USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm

Department of State Visa Bulletin: http://travel.state.gov/visa/bulletin/bulletin_1360.html

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