Headlines:

1. H-1B Petitions Drop Precipitously – H-1B petition filings as of April have dropped substantially since the same time in previous recent years.

2. USCIS Issues Memo on Procedures for Revocation of a U.S. Passport – The memo provides background and outlines statutes under which U.S. passports may be revoked by the Department of State for reasons such as fraud, nonpayment of child support, drug trafficking, non-repayment of a repatriation loan, or conviction for sex tourism.

3. USCIS Releases Final I-140 Extraordinary Ability RFE Template – USCIS posted the template “for stakeholder visibility” until May 17, 2011.

4. DHS Corrects E-Verify E-Mail Address in Final Rule – The e-mail referenced should be changed to read “[email protected]‘ instead of “[email protected].”

5. EB-5 Quarterly Stakeholder Meeting Announced – The next engagement will take place via teleconference on June 30, 2011, at 1 p.m. (Eastern Time), and the deadline to submit agenda items is May 27.

6. 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.

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. H-1B Petitions Drop Precipitously

H-1B petition filings as of April have dropped precipitously since the same time in previous recent years, according to reports. U.S. Citizenship and Immigration Services (USCIS) reported that as of April 8, 2011, it had received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees. At the same time last year (April 8, 2010), it had received more than double that number of cap-subject petitions, or approximately 13,500, and about 5,600 petitions for individuals with advanced degrees. The previous year, on April 20, 2009, USCIS announced that it had received approximately 44,000 cap-subject H-1B petitions and 20,000 petitions for those with advanced degrees. (USCIS did not announce the number of petitions received on April 8 in 2009, unlike other years.)

Speculation about the causes of the slowdown ranges from the continued sluggishness of the U.S. economy to skilled workers seeking work in their home countries and increases in visa fees. Some potential H-1B workers have noted that the cost of living is significantly lower in their home countries and they can be close to family and parents, who often cannot be brought to the U.S. because of difficulties in obtaining visas for them. Critics of the program in Congress and elsewhere have also contributed to an overall negative climate for hiring H-1Bs.

The latest USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ebbdb1a97a53f210VgnVCM100000082ca60aRCRD&vgnextchannel=b56db6f2cae63110VgnVCM1000004718190aRCRD.

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2. USCIS Issues Memo on Procedures for Revocation of a U.S. Passport

U.S. Citizenship and Immigration Services (USCIS) released a memorandum on April 15, 2011, on procedures for recommending revocation of a U.S. passport to the Department of State (DOS). The memo provides background information and outlines statutes under which U.S. passports may be revoked for reasons such as fraud, nonpayment of child support, drug trafficking, non-repayment of a repatriation loan, or conviction for sex tourism.

The memo notes that in recent months, USCIS employees have on occasion informed people that their U.S. passports were invalid and should be surrendered to DOS. Upon review, however, DOS determined that the passports were valid. DOS then asked that USCIS direct any concerns regarding the validity of a passport to DOS and not to the bearer of the passport.

USCIS lacks the authority to revoke or confiscate a U.S. passport, the memo states. The memo instructs USCIS employees who doubt the validity of a passport not to seize the passport, tell the bearer that there are issues with it, or instruct the bearer to return it to DOS. Instead, USCIS employees are to follow the procedures outlined in the memo to request revocation of the passport from DOS.

It is unclear from the memo whether DOS notifies the passport-bearer directly when a passport is revoked. The memo notes that:

After reviewing the revocation request and reaching a determination, DOS will notify the referring contact person of the decision. DOS (Passport Office of Legal Affairs) generally processes revocation requests within 30-60 days of receipt.

In the case of revocation, DOS will transmit a copy of the revocation letter to the referring contact person. The DOS revocation letter must be placed in the individual’s USCIS record. If DOS revokes the passport, the passport is then marked revoked in the Passport Information Electronic Records System (PIERS) and the information is transmitted to TECS.

The memo is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2011/April/revocation-us-passport-pm-602-0036.pdf.

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3. USCIS Releases Final I-140 Extraordinary Ability RFE Template

U.S. Citizenship and Immigration Services (USCIS) has released a final template for requests for evidence (RFEs) with respect to the Immigrant Petition for Alien Worker (Form I-140) for the E11 classification (extraordinary ability in the sciences, arts, education, business, or athletics). USCIS posted the template “for stakeholder visibility” until May 17, 2011. The template outlines the evidence that may be submitted to satisfy the various E11 requirements.

The template is available until May 17 at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Draft%20Request%20for%20Evidence%20(RFE)%20Template%20for%20Comment/Final%20RFEs%20for%20Stakeholder%20Viewing/i-140-E11-alien-extraordinary-ability-rfe-template.pdf.

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4. DHS Corrects E-Verify E-Mail Address in Final Rule

On April 15, 2011, the Department of Homeland Security published a final rule in the Federal Register (76 Fed. Reg. 21225) establishing the documents acceptable for employment eligibility verification. There was an inadvertent error in the final rule. The e-mail referenced should be changed to read “[email protected]‘ instead of “[email protected].”

The DHS notice is available at http://edocket.access.gpo.gov/2011/pdf/2011-10344.pdf.

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5. EB-5 Quarterly Stakeholder Meeting Announced

U.S. Citizenship and Immigration Services’ Office of Public Engagement and Service Center Operations Directorate issued a public invitation for participants to discuss the EB-5 immigrant investor program. The next engagement will take place via teleconference on June 30, 2011, at 1 p.m. (Eastern Time). The deadline to submit agenda items is May 27. The engagement after that will take place on September 15, 2011, via teleconference and also in person in Washington, DC, and the deadline to submit agenda items for the latter meeting is August 15, 2011.

Each engagement will be an opportunity for USCIS to share information on the EB-5 program and address stakeholders’ related topics of interest. USCIS noted that there will be an open forum for questions and answers at each of these engagements, but the agency will not address case-specific inquiries.

To respond to this invitation, e-mail the Office of Public Engagement at [email protected] by June 29, 2011, and reference the following in the subject line of your e-mail: “EB-5 – Phone”. Include your full name and the organization you represent, if any, in the body of the e-mail.

To submit agenda items and questions, RSVP via e-mail and attach a Word document or PDF with suggested items. All submissions for the June 30 teleconference should be received by the Office of Public Engagement by the close of business on Friday, May 27, 2011.

The meeting invitation is available at http://www.uscis.gov/USCIS/Outreach/Upcoming%20National%20Engagements/National%20Engagement%20Pages/2011%20Events/June%202011/EB_5_Engagement_June_2011.pdf.

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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, 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 http://abil.com.

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7. New Publications and Items of Interest

Prevailing wage conferences: The U.S. Department of Labor’s Wage and Hour Division announced that it will host four upcoming free conferences throughout the U.S. on prevailing wage requirements under the Davis-Bacon Act, the McNamara-O’Hara Service Contract Act, and the labor standards provisions of the American Recovery and Reinvestment Act of 2009. The intended audience includes contractors, contracting officials, unions, workers, and other interested parties. Topics will include the wage and fringe benefit requirements that apply to federal and federally assisted contracts.

The conferences will be held May 24-26 in New York City; July 12-14 in Phoenix, Arizona; August 2-4 in Denver, Colorado; and August 16-18 in Las Vegas, Nevada. To attend one of the conferences, send an e-mail to [email protected] that includes the participant’s name, title, organization, and e-mail address, as well as the location of the conference. There is no fee for attending, but space is limited.

For more information regarding the upcoming prevailing wage conferences, as well as information on the DBA, SCA, and Recovery Act, see http://www.dol.gov/whd/recovery or call the Wage and Hour Division’s toll-free helpline at 866-4US-WAGE (487-9243).

Q&A on I-129 export controls requirements: On March 24, 2011, U.S. Citizenship and Immigration Services’ Ombudsman’s Office hosted a public teleconference regarding new export controls data collection requirements in Part 6 of the Petition for a Nonimmigrant Worker (Form I-129) and interviewed two U.S. Department of Commerce Bureau of Industry and Security officials, Bernie Kritzer, Director of Exporter Services, and Steve Hall, Senior Policy Analyst in the Office of Exporter Services. A summary of questions and answers from the teleconference includes where to go for additional information, how to determine whether a company needs a deemed export controls license, how to apply for such a license, what are best practices while waiting to obtain a license, and to which employees the requirements apply, among other things.

The Q&A summary is available at http://www.dhs.gov/xabout/structure/cisomb-telecon-export-controls-commerce-dept.shtm. The Commerce Department has published one set of FAQs on its website at http://www.bis.doc.gov. USCIS is developing a set of FAQs regarding the new Form I-129 Part 6.

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8. Member News

H. Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm?c=US) and Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) spoke together on a panel at the annual conference of the Association to Invest In the USA on May 10, 2011, in Washington, DC, about EB-5 immigrant investor training materials recently released by U.S. Citizenship and Immigration Services (USCIS). The materials were released pursuant to a Freedom of Information Act request filed by Mr. Klasko. Messrs. Klasko and Yale-Loehr noted that the training materials provide the best glimpse yet into what standards USCIS uses when deciding EB-5 petitions. They also suggested that USCIS is scrutinizing EB-5 filings more closely than in the past, as the number of EB-5 petitions continues to increase.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) has posted a new blog entry, “Reflecting on Our Immigration Policy After Osama bin Laden’s Death,” available at http://cyrusmehta.blogspot.com/2011/05/reflecting-on-our-immigration-policy.html.

Mr. Mehta spoke on May 2, 2011, at the American Immigration Lawyers Association’s New York Chapter meeting, which focused on PERM and recent important BALCA decisions on alternative requirements, recruitment issues, post-recruitment/errors, and emerging trends.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US) has published a new blog entry, “Hillary’s New Arsenal of Immigration Drones,” available at http://nationofimmigrators.mt4temp.lexblognetwork.com/foreign-policy/hillarys-new-arsenal-of-immigration-drones/.

Julie Pearl (bio: https://www.abil.com/lawyers/lawyers-pearl.cfm?c=US) was quoted in a Wall Street Journal article on the drop in H-1B visa petitions published on May 7, 2011. Commenting on the reasons why companies may be taking their time to file this year, she noted that “HR people are aware there’s no rush on H-1Bs.”

The Alliance of Business Immigration Lawyers’ (ABIL) Global Immigration Network presented a Global Mobility Conference in London, England, on May 5, 2011. ABIL presenters included:

Laura Devine (moderator) (bio: https://www.abil.com/lawyers/lawyers-devine.cfm?c=UK), Jacqueline Bart (bio: https://www.abil.com/lawyers/lawyers-bart.cfm?c=CA), Sharon Mehlman (https://www.abil.com/lawyers/lawyers-mehlman.cfm?c=US), Robert Loughran (moderator) (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm), Nicolas Rollason (moderator) (bio: https://www.abil.com/lawyers/lawyers-rollason.cfm), Rami Fakhoury (bio: https://www.abil.com/lawyers/lawyers-fakhoury.cfm), Jelle Kroes (bio: https://www.abil.com/lawyers/lawyers-kroes.cfm), Katie Malyon (bio: https://www.abil.com/lawyers/lawyers-malyon.cfm), and Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm).

Conference information is available at: https://abil.com/confs/abil_global_mobility_conference.cfm.

Topics included:

• Compliance related to immigration and tax, as well as criminal liability
• Best practices in global mobility through a case study
• Global mobility trends and hot topics from multiple countries

The conference was presented by ABIL and co-sponsored by Baker Tilly International, a network of accountancy and business advisory firms.

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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

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Headlines:

1. DOS Reports on Employment-Based Visa Demand; First Preference ‘Extremely Low’ – Demand in the employment first preference is extremely low; it also appears unlikely that a second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high.

2. Case Updates: El Badrawi; Arizona – An H-1B worker who had timely sought an extension could not be arrested or subjected to removal; the Ninth Circuit affirmed an injunction against several controversial aspects of Arizona’s S.B. 1070.

3. USCIS Reviews Policy on H-1B Cap Exemptions Based on Higher Ed Relation or Affiliation – Until further guidance is issued, USCIS is applying interim procedures to H-1B nonprofit entity petitions filed with the agency seeking an exemption from the statutory cap based on an affiliation with or relation to an institution of higher education.

4. USCIS Continues To Accept FY 2012 H-1B Petitions – The agency has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.

5. DOL Orders School District To Pay Foreign Teachers Millions in Back Wages – School authorities had required the teachers to cover expenses for their H-1B work visas, in violation of the law.

6. Foreign Affairs Manual Guidance Revised on License Requirements for H-1Bs – The manual was revised to better reflect actual USCIS practice.

7. USCIS Issues Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students Under H-1B Cap-Gap Regs – Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for the cap-gap extension, USCIS said.

8. USCIS Issues Guidance on Concurrent Advance Parole, EAD – USCIS released a guidance memorandum on issuance of employment authorization documents with advance parole endorsements.

9. El Paso Passport Agency Opens – The new agency is located at 303 North Oregon Street in the Anson Mills Building, a few blocks from the U.S.-Mexico border.

10. 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.

11. ABIL Global Mobility Conference – This half-day free conference will help guide professionals involved in global mobility issues to be better equipped when conducting business transactions in another country.

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

13. Member News – Member News

14. Government Agency Links – Government Agency Links

Details:

1. DOS Reports on Employment-Based Visa Demand; First Preference ‘Extremely Low’

The Department of State’s Visa Bulletin for May 2011 notes that demand in the employment first preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category is expected to remain “Current” for all countries. It also appears unlikely, the Bulletin says, that a second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high. Based on current indications of demand, the best-case scenarios for cut-off date movement each month during the coming months are as follows:

Employment Second: Demand by applicants who are “upgrading” their status from employment third to employment second preference is very high, but the exact amount is not known. Such upgrades are in addition to the known demand already reported. The Bulletin said this makes it difficult to predict ultimate demand based on forward movement of the China and India cut-off dates. Although thousands of “otherwise unused” numbers will be available for potential use without regard to the China and India employment second preference per-country annual limits, it is not known how the upgrades will ultimately affect the cut-offs for those two countries.

China: An advance in the priority date of zero to three weeks is expected through July. No August or September estimate is possible at this time.

India: An advance in the priority date of one or more weeks, possibly followed by additional movement if demand remains stable. No August or September estimate is possible at this time.

Employment Third:

Worldwide: An advance in the priority date of three to six weeks may occur.
China: An advance in the priority date of one to three weeks may occur.
India: An advance in the priority date of zero to two weeks is likely.
Mexico: Continued forward movement is expected; no specific projections at this time.
Philippines: An advance in the priority date of three to six weeks is likely.

The Bulletin notes that the above ranges are estimates based on current demand patterns, and are subject to fluctuations during the coming months. “The cut-off dates for upcoming months cannot be guaranteed, and no assumptions should be made until the formal dates are announced,” the Bulletin warned.

Allocation of “Otherwise Unused” Numbers:

INA § 202(a)(5) provides that if total demand in a calendar quarter will be insufficient to use all available numbers in an employment preference, the unused numbers may be made available without regard to the annual per-country limits. Based on current levels of demand, the Bulletin for May 2011 states that there will be otherwise unused numbers in the employment first and second preferences. Such numbers may be allocated without regard to per-country limits, once a country has reached its preference annual limit. Since under INA § 203(e) such numbers must be provided strictly in priority date order regardless of chargeability, greater number use by one country would indicate greater demand by applicants from that country with earlier priority dates. Based on the amount and priority dates of pending demand and year-to-date number use, a different cut-off date could be applied to each oversubscribed country for the purpose of assuring that the maximum amount of available numbers will be used. The Bulletin noted that a cut-off date imposed to control the use of “otherwise unused” numbers could be earlier than the cut-off date established to control number use under a quarterly or per-country annual limit. For example, at present the India employment second preference cut-off date governs the use of numbers under § 202(a)(5) because India has reached its employment second annual limit. The China employment second preference cut-off date governs number use under the quarterly limit because China has not yet reached its employment second annual limit.

The rate of number use under § 202(a)(5) is continually monitored to determine whether subsequent adjustments are needed in visa availability for the oversubscribed countries. The Bulletin said that this helps assure that all available employment preference numbers will be used and that numbers also remain available for applicants from all other countries that have not yet reached their per-country limits.

As noted above, the number of applicants who may be upgrading their status from employment third to employment second preference is unknown. As a result, the cut-off date that governs use of § 202(a)(5) numbers has been advanced more rapidly than normal, in an attempt to ascertain the amount of upgrade demand in the pipeline while at the same time administering the available numbers. “This action risks a surge in demand that could adversely impact the cut-off date later in the fiscal year,” the Bulletin warned, adding that it also limits the possibility that potential demand would not materialize and the annual limit would not be reached due to lack of cut-off date movement.

The Visa Bulletin for May 2011 is available at http://www.travel.state.gov/visa/bulletin/bulletin_5424.html.

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2. Case Updates: El Badrawi; Arizona

In El Badrawi v. USA, 07-cv-1074 (D. Conn. Dec. April 11, 2011), the United States District Court in Connecticut ruled that an H-1B worker who had timely sought an extension of that visa status, and who was authorized to continue working under 8 CFR § 274a.12(b)(20), could not be arrested or subjected to removal. Although a district court decision may not have precedential value beyond the plaintiff in the case, it is nevertheless significant because it provides a stepping-stone for other courts to be similarly persuaded.

In U.S. v. Arizona (9th Cir. April 11, 2011), the U.S. Court of Appeals for the Ninth Circuit affirmed an injunction against several controversial aspects of Arizona’s S.B. 1070, which established a variety of immigration-related state offenses and defined the immigration enforcement authority of Arizona’s state and local law enforcement officers.

The district court had granted the United States’ motion for a preliminary injunction in part, enjoining enforcement of S.B. 1070 sections 2(B), 3, 5(C), and 6, on the basis that federal law likely preempts these provisions. Arizona appealed the grant of injunctive relief, arguing that these four sections are not likely preempted; the United States did not cross-appeal the partial denial of injunctive relief. Thus, the United States’ likelihood of success on its federal preemption argument against these four sections was the central issue the appeal presented.

Among other things, the Ninth Circuit noted that “Congress explicitly required that in enforcing federal immigration law, state and local officers ‘shall’ be directed by the Attorney General. This mandate forecloses any argument that state or local officers can enforce federal immigration law as directed by a mandatory state law.

The Ninth Circuit affirmed the district court’s preliminary injunction order enjoining the controversial provisions, with one partial dissent.

El Badrawi v. USA is available at . For a blog on that case, see http://cyrusmehta.blogspot.com/2011/04/victory-in-el-badrawi-v-usa-narrowing.html. U.S. v. Arizona is available at http://www.ca9.uscourts.gov/datastore/opinions/2011/04/11/10-16645.pdf.

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3. USCIS Reviews Policy on H-1B Cap Exemptions Based on Higher Ed Relation or Affiliation

U.S. Citizenship and Immigration Services (USCIS) announced on March 18, 2011, that it is reviewing its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is applying interim procedures to H-1B nonprofit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

Effective as of March 18 and during the interim period, USCIS will defer to prior determinations made since June 6, 2006, that a nonprofit entity is related to or affiliated with an institution of higher education (absent any significant change in circumstances or clear error in the prior adjudication) and, therefore, exempt from the H-1B statutory cap. USCIS noted, however, that the burden remains on the petitioner to show that its organization previously received approvals of its request for an H-1B cap exemption on this basis.

Petitioners may satisfy this burden by providing USCIS with evidence, such as a copy of the previously approved cap-exempt petition (i.e., a Petition for a Nonimmigrant Worker (Form I-129) and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, along with any documentation that was submitted in support of the claimed cap exemption. USCIS suggests that petitioners also include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

USCIS emphasized that these measures will only remain in place on an interim basis.

Evidence of previous determinations of cap exemption will be considered on a case-by-case basis only when submitted with an I-129 petition for H-1B status requesting exemption from the numerical cap, or in response to a Request for Evidence or Notice of Intent to Deny for H-1B petitions currently pending with USCIS claiming exemption from the cap. USCIS accordingly advised petitioners not to send separate correspondence containing their cap-exemption evidence on this issue.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=2eb0652c630ce210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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4. USCIS Continues To Accept FY 2012 H-1B Petitions

U.S. Citizenship and Immigration Services (USCIS) announced on April 8, 2011, that it continues to accept H-1B nonimmigrant petitions that are subject to the fiscal year (FY) 2012 cap. The agency began accepting these petitions on April 1.

USCIS is monitoring the number of petitions received that count toward the congressionally mandated annual H-1B cap of 65,000 and the 20,000 U.S. master’s degree or higher cap exemption. The agency reported that it has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.

Cases for premium processing of H-1B petitions filed during an initial five-day filing window are undergoing a 15-day processing period that began April 7. For all other H-1B petitions filed for premium processing, the processing period begins on the date that the petition is physically received at the correct USCIS Service Center.

Meanwhile, petitions filed by employers who are exempt from the cap, as well as petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years, will not count toward the cap.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ebbdb1a97a53f210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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5. DOL Orders School District To Pay Foreign Teachers Millions in Back Wages

The Department of Labor (DOL) recently ordered the school system in Prince George’s County, Maryland, to pay $1.7 million in penalties and $4.2 million in back wages and penalties to more than 1,000 teachers recruited from foreign countries, many from the Philippines. School authorities had required the teachers to cover expenses for their H-1B work visas, in violation of the law.

Superintendent William R. Hite, Jr., plans to appeal the findings. He noted that the fines “may have a devastating impact on [the Prince George’s County school system] and its employees and the school system’s ability to continue to place a highly qualified teacher in every classroom.”

Under the ruling, the Prince George’s system must pay $4.2 million in back wages to the foreign teachers and $1.7 million in penalties. DOL spokeswoman Elizabeth Alexander said that the school system “refused to acknowledge” the problem sufficiently or to negotiate a settlement. County schools spokesperson Briant Coleman countered that school authorities had been unaware of the requirement and, when informed, “we corrected it immediately and paid the fees ever since.” Ms. Alexander said cases involving other school systems are pending.

An AFL-CIO report found that in 2008, Prince George’s schools obtained approval for 239 petitions for H-1B visas. Baltimore schools obtained 229 such approvals, the report found, and East Baton Rouge Parish schools in Louisiana obtained 205, Dallas schools 105 and New York City schools 96.

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6. Foreign Affairs Manual Guidance Revised on License Requirements for H-1Bs

On March 31, 2011, the Foreign Affairs Manual (FAM) was revised to better reflect actual practice by U.S. Citizenship and Immigration Services:

The requirements for classification as an H-1B nonimmigrant professional may or may not include a license because States have different rules in this area. If a State permits aliens to enter the United States as a visitor to take a licensing exam, then USCIS will generally require a license before they will approve the H-1B petition. However, some States do not permit aliens to take licensing exams until they enter the United States in H-1B status and obtain a social security number. Therefore, a visa should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States. [9 FAM 41.53 N4.1]

The pertinent section of the FAM is available at http://www.state.gov/documents/organization/87226.pdf.

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7. USCIS Issues Q&A on Extension of Post-Completion OPT and F-1 Status for Eligible Students Under H-1B Cap-Gap Regs

U.S. Citizenship and Immigration Services (USCIS) released a Q&A document on April 1, 2011, addressing the automatic extension of F-1 student status in the U.S. for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011, under the fiscal year (FY) 2012 H-1B cap. Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for the cap-gap extension, USCIS said.

Once a timely filing has been made requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed, USCIS explained. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the U.S.

To obtain proof of continuing status, a student covered under the cap-gap extension should go to his or her designated school official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1.

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status, USCIS said.

USCIS strongly encourages students “to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.”

The USCIS notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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8. USCIS Issues Guidance on Concurrent Advance Parole, EAD

U.S. Citizenship and Immigration Services (USCIS) released a guidance memorandum on issuance of employment authorization documents (EADs) with advance parole endorsements.

Traditionally, USCIS has issued two separate documents, an EAD (Form I-766) and an Authorization for Parole of an Alien into the United States (Form I-512). Although adjudication of an Application for Travel Document (Form I-131) and an Application for Employment Authorization (Form I-765) requires two separate determinations by USCIS adjudicators, USCIS noted that the information required from the applicant and the processes followed by the adjudicator are similar.

USCIS noted that approximately 15% of applicants filing an I-765 based on a pending I-485 also file an I-131 concurrently with, or shortly after filing, the I-485. USCIS said it approves approximately 93% of those applications for ancillary benefits.

The agency therefore determined that it was more cost-effective for the government and more convenient for the applicants to adjudicate the I-765 and I-131 simultaneously and, if both forms are approved, to issue a single document indicating that both ancillary benefits have been granted.

Whenever possible, USCIS said its adjudicators will simultaneously adjudicate concurrently filed applications for employment authorization and applications for advance parole authorization filed by applicants for adjustment of status under 8 CFR § 245 or to register status under 8 CFR § 249. If USCIS approves both applications, it will issue a single document, Advance Parole EAD (Form I-766). USCIS is also reviewing whether it is feasible to expand eligibility for an EAD with advance parole endorsement to other EAD recipients who are eligible for advance parole.

The memorandum is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2011/April/issuance-advance-parole.pdf.

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9. El Paso Passport Agency Opens

The Department of State (DOS) held a ribbon-cutting ceremony on April 8, 2011, to mark the official opening of the El Paso Passport Agency. The new agency is located at 303 North Oregon Street in the Anson Mills Building, a few blocks from the U.S.-Mexico border. DOS said the new agency “alleviates the need for local residents with urgent travel plans to drive or fly to the Houston Passport Agency, approximately 750 miles away, or the Western Passport Center in Tucson, Arizona, approximately 300 miles away.”

The announcement is available at http://www.state.gov/r/pa/prs/ps/2011/04/159682.htm.

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

A new 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, will help 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. The series will explain immigration options and offer 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 April 13 at 12 noon (Eastern time). 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 pm (Eastern time). 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 pm (Eastern time). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

The cost is $89 for an individual session or $249 for all three sessions. To register, go to the ABIL Webinars sign-up page at https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, e-mail Lauren Anderson at [email protected] or visit http://www.abil.com.

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11. ABIL Global Mobility Conference

The Alliance of Business Immigration Lawyers’ (ABIL) Global Immigration Network will present a Global Mobility Conference in London, England, on Thursday, May 5, 2011, from 2 to 5 pm. This half-day free conference will help guide professionals involved in global mobility issues to be better equipped when conducting business transactions in another country. The conference will look at the following areas:

• Compliance related to immigration and tax, as well as criminal liability
• Best practices in global mobility through a case study
• Global mobility trends and hot topics from multiple countries

The conference is presented by ABIL and co-sponsored by Baker Tilly International, a network of accountancy and business advisory firms. For more information, e-mail Lauren Anderson at [email protected].

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12. New Publications and Items of Interest

House hearing testimony on the H-1B program: Testimony from the March 31, 2011, House Judiciary Subcommittee on Immigration Policy and Enforcement hearing, “H-1B Visas: Designing a Program to Meet the Needs of the U.S. Economy and U.S. Workers,” included Donald Neufeld, Associate Director of USCIS Service Center Operations; Bo Cooper, Partner, Berry Appleman & Leiden LLP; Ron Hira, Ph.D., Associate Professor of Public Policy, Rochester Institute of Technology; and Bruce A. Morrison, Chairman, Morrison Public Affairs Group. Lamar Smith (R-Tex.) chaired the hearing. The testimony is available at http://judiciary.house.gov/hearings/hear_03312011.html.

USCIS naturalization and permanent residence statistics: The Department of Homeland Security has released reports on naturalizations in 2010 and permanent residence in 2010. The reports are available at http://www.dhs.gov/files/statistics/immigration.shtm.

DOL FAQ on requesting an extension for submitting documents: The Department of Labor’s Office of Foreign Labor Certification released a FAQ on what an employer should do if it is unable to provide documentation in response to a decision or a request for information in a timely manner (i.e., before an established deadline), particularly in extenuating circumstances where the deadline is immediate. The FAQ is available at http://www.aila.org/content/default.aspx?docid=35039.

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13. Member News

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) has published a new blog entry. “Deporting A U.S. Citizen Child? Take a Leaf Out of the State Department’s Book on Birthright Citizenship” discusses the case of a four-year-old U.S. citizen child sent to Guatemala by U.S. Customs and Border Patrol, and dual nationality issues. The blog is available at http://cyrusmehta.blogspot.com/.

Mr. Mehta also recently did a podcast for the American Immigration Lawyers Association on “Terminating the Attorney-Client Relationship,” available at http://www.aila.org/content/default.aspx?docid=34999.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US) has published several new blog entries. “Xeriscaped Immigration — With All the Juice Squeezed Out” discusses recent developments, including rumors that there will likely be no let-up in detentions, removals and worksite enforcement actions, and no legislative action or administrative relief on comprehensive immigration reform until after the 2012 elections. The blog also notes that U.S. Citizenship and Immigration Services recently announced that it had received just over 10,000 H-1B visa petitions for foreign workers in specialty occupations (about 5,900 petitions counting toward the 65,000 cap, and roughly 4,500 petitions toward the 20,000 cap for holders of advanced U.S. degrees). The blog is available at http://www.nationofimmigrators.com/xeriscaped-immigration—-with-all-the-juice-squeezed-out/index.html. “Immigration Punking — Left, Right and Center” discusses various tomfoolery and foolishness in the immigration field, some of which is related to April Fool’s Day and some of which is regrettably all-too-real. The blog is available at http://www.nationofimmigrators.com/immigration-reform/immigration-punking—-left-right-and-center/.

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14. 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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Headlines:

1. USCIS Proposes Rule on Registration Requirement for H-1B Petitioners – The rule, which would not take effect until next year, proposes to require employers seeking to petition for H-1B cap-subject workers to first file electronic registrations during a designated registration period.

2. USCIS Announces Relief for Japanese, Pacific Nationals Stranded in U.S. Following Quake, Tsunami – Those who have exceeded or are about to exceed their authorized stay in the U.S. may be permitted up to an additional 30 days to depart.

3. USCIS Provides Interim EADs To Some Salvadorans – USCIS mailed approximately 4,500 interim EADs to Salvadorans who have not yet received a final action on their re-registration applications.

4. New Mumbai U.S. Consulate To Open Later in 2011; H and L Interviews Limited in Meantime – New H and L interviews may be scheduled at other U.S. Consulates in India or at the U.S. Embassy in New Delhi.

5. USCIS To Permanently Close Vietnam Office on March 31 – As of March 25, applications and petitions previously accepted by the USCIS Ho Chi Minh City Field Office may be filed with the U.S. Department of State Consular Section there.

6. Obama Won’t Support DOMA in Court Challenges: Business Immigration Implications – President Obama has determined that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and will no longer defend it in court.

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 Proposes Rule on Registration Requirement for H-1B Petitioners

The Department of Homeland Security has proposed to amend its regulations on petitions filed on behalf of H-1B workers subject to annual numerical limitations or exempt from numerical limitations by virtue of having earned a U.S. master’s or higher degree. The rule proposes to require employers seeking to petition for H-1B cap-subject workers to first file electronic registrations with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period.

USCIS estimated that the proposed rule could save U.S. businesses more than $23 million over the next 10 years by minimizing administrative burdens and related expenses. The agency said the registration system would save employers the effort and expense of filing H-1B petitions, as well as labor condition applications, for workers who would be unable to obtain visas under the statutory cap. USCIS estimated that the registration process would take 30 minutes to complete.

Under the proposed rule, if USCIS anticipates that the H-1B cap will not be reached by the first day upon which H-1B petitions may be filed for a particular fiscal year, USCIS would notify all registered employers that they are eligible to file H-1B petitions on behalf of the beneficiaries named in the selected registrations. USCIS would continue to accept and select registrations until the H-1B cap is reached. On the other hand, if USCIS anticipates that the H-1B cap will be reached by the first day upon which H-1B petitions may be filed for a particular fiscal year, USCIS would close the registration before such date and randomly select a sufficient number of timely filed registrations to meet the applicable cap.

USCIS proposes to allow only those petitioners whose registrations are randomly selected to file H-1B petitions for the cap-subject prospective worker named in the registration. USCIS would create a waitlist containing some or all of the remaining registrations, based on USCIS statistical estimates of how many more registrations may be needed to fill the caps should the initial pool of selected registrations fall short. USCIS would notify the employers of those registrations placed on the waitlist when and if they are eligible to file an H-1B petition. Employers whose registrations were neither randomly selected to file petitions nor placed on the waitlist would receive notification that they were not selected to file petitions in that fiscal year.

USCIS said it anticipates that this new process “will reduce administrative burdens and associated costs on employers who currently must spend significant time and resources compiling the petition and supporting documentation for each potential beneficiary without certainty that the statutory cap has not been reached.” The proposed mandatory registration process also “will alleviate administrative burdens on USCIS service centers that process H-1B petitions,” the agency said.

Written comments must be submitted by May 2, 2011. This means that the final rule will not take effect until the 2012 H-1B filing season.

The proposed rule is available at http://edocket.access.gpo.gov/2011/pdf/2011-4731.pdf. The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ee87bbd04337e210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b02864337c77e210VgnVCM100000082ca60aRCRD&vgnextchannel=8a2f6d26d17df110VgnVCM1000004718190aRCRD.

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2. USCIS Announces Relief for Japanese, Pacific Nationals Stranded in U.S. Following Quake, Tsunami

U.S. Citizenship and Immigration Services announced on March 11, 2011, the following relief for Japanese and other nationals from the Pacific stranded in the U.S. due to the earthquake and tsunami disasters in Japan:

This advisory is for Japanese and other foreign nationals from the Pacific stranded in the United States due to the earthquakes and tsunami devastation. If you have exceeded or are about to exceed your authorized stay in the U.S. you may be permitted up to an additional 30 days to depart.

Visitors traveling under the Visa Waiver Program (VWP):

• If you are at an airport, contact the U.S. Customs and Border Protection office at the airport
• All others, please visit the local U.S. Citizenship and Immigration Services office

Visitors traveling under a nonimmigrant visa:

• Visit the local U.S. Citizenship and Immigration Services office
• Bring your passport, evidence that you are stranded (such as an itinerary for the cancelled flight), and your I-94 departure record

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=89a8ce68596ae210VgnVCM100000082ca60aRCRD&vgnextchannel=e7801c2c9be44210VgnVCM100000082ca60aRCRD.

Additional immigration relief options are available on the Special Situations Web page at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f34d3e4d77d73210VgnVCM100000082ca60aRCRD&vgnextchannel=f34d3e4d77d73210VgnVCM100000082ca60aRCRD.

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3. USCIS Provides Interim EADs To Some Salvadorans

U.S. Citizenship and Immigration Services (USCIS) announced on March 8, 2011, that it sent some existing Salvadoran temporary protected status (TPS) beneficiaries interim employment authorization documents (EADs) during the continued processing of their re-registration applications. USCIS mailed approximately 4,500 interim EADs to Salvadorans who have not yet received a final action on their re-registration applications.

Issuance of the interim EADs allows TPS beneficiaries to continue working while USCIS completes the processing of their re-registration applications. The original expiration date for Salvadoran EADs was September 9, 2010. USCIS had automatically extended this validity period to March 9, 2011.

USCIS has already processed over 208,000 Salvadoran re-registration applications for the current TPS extension period ending March 9, 2012.

Any re-registration applicant who receives an interim EAD must still respond to any USCIS requests for additional evidence, including requests for documents, or biometric or fingerprint appointments.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1401a07eb269e210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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4. New Mumbai U.S. Consulate To Open Later in 2011; H and L Interviews Limited in Meantime

A new U.S. Consulate is being constructed for Mumbai, scheduled to open later in 2011. No new H and L appointments are being made at the current Mumbai Consulate, which has limited interview capabilities due to aging infrastructure. New H and L interviews may be scheduled at other U.S. Consulates in India or at the U.S. Embassy in New Delhi.

For more information, see http://www.vfs-usa.co.in/USIndia/news.html.

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5. USCIS To Permanently Close Vietnam Office on March 31

U.S. Citizenship and Immigration Services (USCIS) has announced that it will permanently close its field office in Ho Chi Minh City, Vietnam, on March 31, 2011. As of March 25, applications and petitions previously accepted by the USCIS Ho Chi Minh City Field Office may be filed with the U.S. Department of State Consular Section there. Where authorized, the Consular Section will assume responsibility for processing certain cases.

For details, including contact information for queries, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=48f1b3e38c19e210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. Obama Won’t Support DOMA in Court Challenges: Business Immigration Implications

The Justice Department announced in February that based in part on the recommendation of Attorney General Eric Holder, President Barack Obama has determined that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional and will no longer defend it in court. This is because, facing litigation within the jurisdiction of a circuit court of appeals (the Second Circuit) that has never ruled on the appropriate standard of review to be applied to laws concerning sexual orientation, the administration determined that a heightened standard of review is appropriate, and that Section 3 of DOMA cannot withstand review under such a standard (although the Justice Department had previously argued that Section 3 could survive the looser rational-basis test applicable under the precedent of some courts of appeals).

Many people in same-sex marriages file business immigration applications because they have no alternative. Their applications may be backlogged due to numerical limitations. This issue is also important from a business immigration perspective because many beneficiaries of both I-140 immigrant visa petitions and nonimmigrant visa petitions may be in same-sex marriages that have been legally recognized in other countries and some states within the U.S., but they cannot avail of derivative status, such as H-4 or L-2 (which also carries with it work authorization privileges) or even derivatively obtain permanent residence with the principal.

Such people, along with their employers, should be advised about the paradigm shift in the administration’s position on DOMA, and the potential to challenge existing Department of Homeland Security (DHS) policy in litigation, which the Department of Justice will no longer oppose. Even if an affected individual chooses not to litigate, it is expected that someone will eventually challenge DHS policy, and if it succeeds, which is more likely now than ever before, it will benefit everyone in the same situation.

On the other hand, given the uncertainty regarding the timing and nature of final judicial action on this subject, it would be extremely risky for same-sex married couples to affirmatively seek immigration benefits in reliance on this announcement. It could even be risky for same-sex couples to marry in reliance on the announcement, if the current status of one of the spouses depends on showing a foreign residence and no intent to abandon it (such as with a B-1/B-2 visitor or F-1 student).

For more on this issue, see http://cyrusmehta.blogspot.com/2011/02/potential-immigration-implications-for.html. The Attorney General’s statement is available at http://www.justice.gov/opa/pr/2011/February/11-ag-222.html.

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7. New Publications and Items of Interest

Consular interview preparation video. A short video, available at no charge from “path2usa.com,” explains how to prepare for a consular interview and what to expect. See http://www.youtube.com/watch?v=vgX7dGyziCI.

GAO on export controls. The U.S. Government Accountability Office (GAO) has published Export Controls: Improvements Needed to Prevent Unauthorized Technology Releases to Foreign Nationals in the United States. The report notes that four factors together may indicate the risk that foreign nationals could gain unauthorized access to controlled dual-use technology. First, foreign businesspeople, scientists, engineers, and others have gained unauthorized access in the United States to controlled dual-use technologies. Second, during fiscal years 2004 through 2009, the Department of Commerce suspended the export privileges of three violators and fined 14 U.S. companies about $2.3 million for allowing foreign nationals unauthorized access to controlled technologies. Third, Commerce’s screening of overseas visa applications for potential unlicensed deemed exports dropped from 54,000 in fiscal year 2001 to 150 in fiscal year 2009. Fourth, from fiscal years 2004 to 2009, the United States issued about 1.05 million specialty occupation visas in high-technology fields to foreign nationals from 13 countries of concern, while Commerce issued deemed export licenses authorizing transfers of technology to about 3,200 foreign nationals from these countries. The report notes that Commerce and U.S. Immigration and Customs Enforcement have not implemented prior recommended changes to the deemed export licensing process, and that confusion remains. As a result, employers may not be aware of deemed export licensing requirements and how to obtain the licenses required.

The report (GAO-11-354) is available at http://www.gao.gov/products/GAO-11-354.

OIG report on WHTI. The Department of Homeland Security’s Office of Inspector General has published Customs and Border Protection Needs to Improve Its Inspection Process for the Western Hemisphere Travel Initiative. The report finds that generally, U.S. Customs and Border Protection (CBP) has successfully implemented the Western Hemisphere Travel Initiative (WHTI) in the air environment, reporting high compliance rates among air passengers. The new documentation requirements have improved CBP officers’ ability to validate the identity and citizenship of compliant air passengers, allowing officers to spend more time inspecting travelers without passports.

The report notes, however, that there is inadequate assurance that CBP officers verified the identity and citizenship of all individuals who failed to provide a passport or other WHTI-compliant documentation; CBP officers did not always document the basis for their decisions to admit air passengers who were noncompliant with the new document requirements. Also, they did not always follow CBP policy for referring all such noncompliant passengers to a secondary inspection area for a more thorough review. The report says that these shortfalls may be attributed to inadequate officer training and oversight, and a lack of guidance. “Failure to establish the identities and citizenship of all air passengers is a vulnerability that could be exploited by individuals intent on harming this country,” the report warns, making four recommendations to improve the agency’s implementation of the WHTI’s new documentation requirements. The report also includes the CBP’s responses to the OIG’s recommendations.

The OIG’s report is available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_11-43_Feb11.pdf.

Advisory committee on free trade and labor issues. The National Advisory Committee for Labor Provisions of U.S. Free Trade Agreements has been reestablished. The committee will provide its views to the Secretary of Labor through the Department of Labor’s Bureau of International Labor Affairs. The committee will include 12 members, four representing the labor community, four representing the business community, and four representing the public.

The Bureau of International Labor Affairs serves as the U.S. point of contact for various U.S. free trade agreements. The committee also may be asked to provide advice on the implementation of labor provisions of other free trade agreements to which the U.S. may be a party or become a party. The committee will be asked to provide advice on issues within the scope of the North American Agreement on Labor Cooperation and the labor provisions of the free trade agreements, including cooperative activities and the labor cooperation mechanism of each free trade agreement. Members of the Committee will not be compensated for their services or reimbursed for travel expenses.

The announcement is available at http://edocket.access.gpo.gov/2011/pdf/2011-5637.pdf.

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8. Member News

H. Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm?c=US) has announced the next Klasko, Rulon, Stock & Seltzer annual spring seminar, to be held April 12, 2011, from 9:30 a.m. to 1 p.m. at The Union League of Philadelphia. Topics will include updates on legislation, special handling, worksite enforcement, USCIS, CBP, DOL, new export control requirements, and EB-2/EB-3 strategy, and there will be a corporate roundtable. For more information, call (215) 825-8600.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm?c=US), Francis Chin (bio: https://www.abil.com/lawyers/lawyers-chin.cfm?c=US), and Sharon Mehlman (bio: https://www.abil.com/lawyers/lawyers-mehlman.cfm?c=US) spoke at the American Immigration Lawyers Association’s New England immigration law conference (Advanced Immigration Strategies: The Government Answers Your Questions) in Boston, Massachusetts, on March 4, 2011. Conference topics included USCIS Service Center and Lock Box procedures, NVC processing, CBP issues, an inter-agency panel, advanced business concerns, and advanced EOIR practice.

Robert Loughran (bio: https://www.abil.com/lawyers/lawyers-loughran.cfm?c=US) will speak at “Hiring Foreign Nationals – Deemed Exports and Tax Considerations,” to be held on March 31, 2011, from 9 a.m. to 12:30 p.m. at the International Center of Austin in Texas. The session will provide an overview of the new immigration requirements regarding deemed export issues, the deemed export rule and export regulations applicable to controlled technology, practical recommendations regarding internal access control implementation, and considerations associated with the hiring of foreign nationals. For more information or to register, see http://www.cvent.com/events/hiring-foreign-nationals-deemed-exports-tax-considerations/event-summary-2c1a188b3e5a42ccaf5d1730184c5d3c.aspx.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) will present at an American Immigration Lawyers Association seminar, “Dual Representation in Employment-Based Cases,” to be held on March 22, 2011, starting at 2 p.m. eastern time. Presenters will discuss ethical considerations and pitfalls when representing both employer and employee. For more information or to register, see http://www.aila.org/content/default.aspx?docid=33696. Questions may be e-mailed to [email protected], or call (202) 507-7644.

Mr. Mehta recently presented at a New York City Bar seminar, “Administrative Action as an Alternative to Immigration Reform,” which was held on March 8, 2011. The panel discussed administrative discretionary measures as a substitute for immigration reform legislation.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US) has published several new blog entries. “I Am Furious (Yellow) – At USCIS and its AAO” recognizes USCIS’s achievements but faults it for “its toleration, coddling and empowerment of adjudicative officers in its own agency who…(in most instances) lack admission to any state bar and are beholden to no canons of legal ethics.” The blog is available at http://www.nationofimmigrators.com/i-am-furious-yellow—-at-uscis/. “Granular and Possibly Grand Immigration Reform” discusses the tension between federal power and states’ rights, and looks at Utah’s proposed immigration-related legislation in depth. The blog is available at http://www.nationofimmigrators.com/immigration-reform/granular-and-possibly-grand-legal-immigration-immigration-reform/.

Several ABIL members spoke at an EB-5 immigrant investor conference sponsored by the American Immigration Lawyers Association in Las Vegas, Nevada, on March 14, 2011. Mr. Klasko spoke on EB-5 lore versus law and on ethical issues. Bernard Wolfsdorf (bio: https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm?c=US) moderated a panel on determining when and whether the EB-5 category is the best choice for potential investors. Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) spoke on a panel about potential pitfalls in removing conditions for EB-5 investors.

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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

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Headlines:

1. USCIS Issues Work Authorization and Advance Parole on Single Card for Adjustment Applicants – The card will serve as both an employment authorization and advance parole document.

2. Export Controls Attestation Requirement Starts February 20 – As of February 20, 2011, employers must fill out the export controls attestation in Part 6 of the new edition of the Petition for a Nonimmigrant Worker (Form I-129).

3. Labor Dept. Board Rules Against Company for Failing to Pay H-1B Worker for Travel Time – A company policy against paying for travel is not among the exceptions to an H-1B employer’s obligation to pay H-1B nonimmigrant workers their wages, the ARB said.

4. DHS, DOS Establish Annotated B-1 Visa for Foreign Maritime Workers Applying for ID Program – The new process will apply to the approximately 4,000 to 6,000 foreign workers in U.S. ports who must have a “TWIC” ID for the performance of their official duties.

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. USCIS Issues Work Authorization and Advance Parole on Single Card for Adjustment Applicants

U.S. Citizenship and Immigration Services (USCIS) announced that it is now issuing employment and travel authorization on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status (Form I-485). USCIS said the new card “represents a significant improvement from the current practice of issuing paper Advance Parole documents.”

The card appears similar to the current Employment Authorization Document (EAD) but includes text that reads, “Serves as I-512 Advance Parole.” A card with this text serves as both an employment authorization and advance parole document.

An applicant may receive this card when he or she files an Application for Employment Authorization (Form I-765) and an Application for Travel Document (Form I-131) concurrently with or after filing the I-485. USCIS said it will continue to issue separate EAD and advance parole documents when warranted. Employers may accept the new card as a List A document when completing the Employment Eligibility Verification (Form I-9).

USCIS noted that as with the current advance parole document, obtaining the combined card allows an adjustment applicant to travel abroad and return to the U.S. without abandoning the pending adjustment application. Upon returning to the U.S., the applicant must present the card to request parole through the port-of-entry, and the decision to parole the individual is made at the port-of-entry. Those who have been unlawfully present in the U.S. and subsequently depart and seek re-entry through a grant of parole may be inadmissible and ineligible to adjust their status, USCIS warned.

The USCIS notice, released on February 11, 2011, is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=44028bcbf851e210VgnVCM100000082ca60aRCRD&vgnextchannel=c94e6d26d17df110VgnVCM1000004718190aRCRD.

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2. Export Controls Attestation Requirement Starts February 20

As of February 20, 2011, employers must fill out the export controls attestation in Part 6 of the new edition of the Petition for a Nonimmigrant Worker (Form I-129). The form is used to file nonimmigrant petitions for employees in categories such as H-1B, L-1 and O-1. The new edition has a revision date of November 23, 2010.

The employer must certify, with respect to any technology to which the employee will have access on the job, that a license from the Departments of Commerce or State is not required to release the technology to the foreign national (or, in the rare case that a license is required, the employer will restrict the beneficiary’s access to the technology until a license is obtained). To properly complete the new I-129 form, an employer must first classify the technology or technical data that will be released to or be accessed by a prospective foreign national employee to determine whether an export license may be required.

For advice on the new I-129 and deemed export attestations, contact your local Alliance of Business Immigration Lawyers (ABIL) attorney. To locate an ABIL attorney, go to https://www.abil.com/ and click on “ABIL Attorneys” or “Global Attorneys.”

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3. Labor Dept. Board Rules Against Company for Failing to Pay H-1B Worker for Travel Time

The Department of Labor’s Administrative Review Board (ARB) ruled on January 31, 2011, against a medical software company, Integrated Informatics, Inc., for failing to pay an H-1B nonimmigrant computer programmer for two days of traveling for a work project. The ARB rejected the company’s argument that it had a policy of withholding payment for travel. “Even accepting as true that Integrated’s policy is not to compensate its employees for travel time, a company policy is not among the exceptions to an H-1B employer’s obligation to pay H-1B nonimmigrant workers their wages,” the ARB said.

The decision is available at http://op.bna.com/dlrcases.nsf/id/jaca-8dupbr/$File/Integrated.pdf.

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4. DHS, DOS Establish Annotated B-1 Visa for Foreign Maritime Workers Applying for ID Program

The Departments of Homeland Security (DHS) and State (DOS) have announced the creation of an annotated version of the B-1 visa that will make foreign maritime workers eligible to apply for a Transportation Worker Identification Credential (TWIC). The TWIC is a tamper-resistant biometric identification card that maritime workers must obtain to gain unrestricted access to secure areas of maritime facilities.

Under this process, foreign maritime workers who need to acquire a TWIC for the performance of their official duties must provide notice of their need for the TWIC to DOS upon applying for a B-1 visa, and a letter from their employer stating that the worker must perform service in secure port areas. Upon receipt of the new TWIC-annotated B-1 visa, each individual will apply separately for a TWIC. The new process will apply to the approximately 4,000 to 6,000 foreign workers in U.S. ports who must have a TWIC for the performance of their official duties.

The Transportation Security Administration (TSA) published a TWIC final rule in January 2007 allowing noncitizens to apply for a TWIC provided that they meet one of TSA’s eligible categories. Following input from maritime industry stakeholders, DHS and DOS collaborated to create the new process.

The DHS announcement is available at http://www.dhs.gov/ynews/releases/pr_1297280840745.shtm.

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5. New Publications and Items of Interest

USCIS survey on E-Verify. U.S. Citizenship and Immigration Services (USCIS) reported that a customer satisfaction survey found that E-Verify received an overall score of 82 out of 100. CFI Group, a consulting firm specializing in customer satisfaction measurements, developed the survey last July and questioned more than 4,500 random employers using E-Verify. Respondents included new and current users and federal contractors required to use the system.

USCIS also reported on a recent U.S. Government Accountability Office (GAO) report, stating that the GAO “cites improvements in the reduction of mismatch rates, ensuring employer compliance, and establishing better safeguards for employees’ personal information.” The GAO report also noted, however, that E-Verify errors persist and are difficult to correct.

The customer satisfaction survey results report is available at http://www.uscis.gov/USCIS/Resources/Reports/E-Verify/e-verify-satisfaction-report-10-15-10.pdf. USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a6adb46adba9d210VgnVCM100000082ca60aRCRD&vgnextchannel=a2dd6d26d17df110VgnVCM1000004718190aRCRD. The GAO report is available at http://www.gao.gov/new.items/d11146.pdf.

Migration Policy Institute on E-Verify. The Migration Policy Institute has released a new report, “E-Verify: Strengths, Weaknesses, and Proposals for Reform,” which examines E-Verify’s implementation, improvements over time, and continuing challenges, and sketches a way forward for effective employment verification. Because any new E-Verify mandate runs a risk of adverse unintended consequences, the report recommends that changes be phased in gradually and evaluated against performance benchmarks. In the longer term, the report suggests, the most promising strategy for successful expansion of E-Verify will be to link new employment verification mandates to a targeted or comprehensive immigration reform effort. Only then would both employers and current undocumented workers have positive incentives to use the program and comply with its requirements. The report is available at http://www.migrationpolicy.org/pubs/E-Verify-Insight.pdf.

Immigration and High-Tech Entrepreneurship. The Center for Technology Innovation at Brookings has released a study showing that the founding teams of about 16 percent of a nationally representative sample of high-impact, high-technology companies include at least one immigrant. About 77 percent of those are U.S. citizens. Most are well-educated and have substantial professional experience. The study outlines three policy options that could expand the pool of potential high-impact, high-tech immigrant entrepreneurs over the long term: clearing the green card (permanent residence) backlog, easing the pathway from student visa to work visa to green card, and creating a “point system” for a limited number of unsponsored green card applicants. The study is available at http://www.brookings.edu/papers/2011/02_immigration_hart_acs.aspx.

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6. Member News

Steve Clark (bio: https://www.abil.com/lawyers/lawyers-clark.cfm?c=US) will address post-doctoral scholars on March 8, 2011, at the Massachusetts Institute of Technology (MIT) on their options to self-petition for permanent residence. The event is co-sponsored by the MIT International Scholars Office and Flynn and Clark, P.C.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) recently debated on immigration issues in Georgia on NBC Atlanta (Channel 11). The video is available at http://www.11alive.com/video/default.aspx?bctid=778584359001#/Debate%20On%20Immigration/778584359001.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) has published a new blog entry, “The LCA in the Age of Telecommuting.” The blog notes that telecommuting employees raise important questions and issues in the immigration context, especially with regard to the Labor Condition Application (LCA) required for H-1B nonimmigrant workers. Among those issues is whether a new LCA is required for each location where an employee teleworks. The blog is available at http://cyrusmehta.blogspot.com/2011/02/lca-in-age-of-telecommuting.html.

Steve Trow (bio: https://www.abil.com/lawyers/lawyers-trow.cfm?c=US) will speak on a panel on March 2, 2011, on “Landing in America: Help for Foreign Nationals in Navigating the Sea of Immigration and Banking Issues,” sponsored by the British-American Business Association (BABA) and the French-American Chamber of Commerce. The event will be held at HSBC’s Premier Center in Washington, DC. for more information about the event, call BABA at (202) 293-0010.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) has published several new blog entries. “What About ‘Legal Immigration’ Don’t You Understand?” discusses a new bill Sen.Orrin Hatch is introducing. The blog is available at http://www.nationofimmigrators.com/i-should-know-better-than/index.html. “U.S. Immigration’s Egyptian Moment,” which likens the immigration situation in the U.S. to a pressure cooker and argues that the building energy will have to be released: “All of the essential requirements for an energized reaction are present. DREAMers have nowhere to go but to the street and to their smartphones. Spanish- and other foreign-language media will report growing resentment, anger and the desire for justice among their U.S. citizen and immigrant readers – reporting largely unnoticed in the Anglo mediascape.” The blog is available at http://blogs.ilw.com/angelopaparelli/.

Steve Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) was quoted in the February 2, 2011, edition of the Los Angeles Daily Journal. The article, “Shareholders Bring Novel Suits Over Workforce,” discusses a securities fraud suit filed against American Apparel Inc. because its stock dropped following an immigration enforcement action that resulted in the firing of nearly a third of its factory workforce. “Certainly, this securities fraud action is the first opportunity that I know of for a jury to judge the immigration policies of a company,” said Mr. Yale-Loehr. He noted that the case is especially interesting because American Apparel has taken a more liberal and publicized stance on immigration policies than other public companies. The company simultaneously asserted that it had tried to comply with immigration laws, he noted.

Mr. Paparelli and Mr. Yale-Loehr will co-present a Lexis Webinar on March 8, 2011, to guide corporate and tax attorneys who represent high net worth individuals. It will explain immigration options and offer practical real-world strategies for their clients. For more information on the Webinar, “U.S. Investment Visas and Green Cards for Foreign Clients – A Webinar for Corporate and Tax Lawyers,” see http://www.lexisnexis.com/COMMUNITY/TAXLAW/blogs/conferencesandevents/archive/2011/02/11/march-8-martindale-com-174-connected-presents-u-s-investment-visas-and-green-cards-for-foreign-clients-a-webinar-for-corporate-and-tax-lawyers.aspx.

Mr. Yale-Loehr and other Alliance of Business Immigration Lawyers members will be speaking at the 2011 American Immigration Lawyers Association’s EB-5 CLE Conference in Las Vegas, Nevada, on March 14, 2011. The comprehensive one-day program provides training in EB-5 investor law for practitioners at every level. For more information, see http://www.aila.org/eb5conference.

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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: 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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Headlines:

1. USCIS Revises I-9 Manual for Employers – The handbook includes expanded guidance on lawful permanent residents, refugees and asylees, and acceptable documents for employees in TPS.

2. E-Verify Update: USCIS Updates Web Interface, Launches Newsletter; House Hearings Soon – USCIS has made changes to its E-Verify Web interface, and has launched a newsletter on E-Verify developments.

3. Visa Numbers Move Slowly – Priority dates in several employment-based categories moved ahead, although not by much overall.

4. USCIS Releases H-1B, H-2B Cap Counts – ABIL recommends filing petitions now.

5. DHS Adds New Countries to H-2A, H-2B Programs; Drops Indonesia – Of the 53 countries on the list, 15 were designated for the first time this year.

6. USCIS Releases Pending Employment-Based Adjustment of Status Inventory – The report shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.

7. USCIS Issues Policy Memo Disallowing Concurrent Filings for Special Immigrant Religious Workers – Any I-485 where the underlying basis for adjustment is an I-360 petition for a special immigrant religious worker must be filed based on an approved I-360 petition.

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. USCIS Revises I-9 Manual for Employers

U.S. Citizenship and Immigration Services (USCIS) has revised its Handbook for Employers: Instructions for Completing Form I-9 (M-274). Revised as of January 5, 2011, the handbook includes expanded guidance on lawful permanent residents, refugees and asylees, and acceptable documents for employees in temporary protected status (TPS).

The following is a summary of key changes in the revised handbook:

Employees With TPS

TPS is a temporary immigration benefit that allows foreign nationals from designated countries to reside and work in the United States for a temporary period of time. The Department of Homeland Security (DHS) may extend a country’s TPS designation and issue a Federal Register notice to automatically extend expiring employment authorization documents (EADs) for TPS beneficiaries. Thus, a TPS beneficiary may choose to present an EAD that is expired on its face so long as it has been automatically extended. The challenge to employers is how to determine whether a TPS beneficiary’s expired EAD is valid as a List A document.

The handbook now provides guidance on how to identify a TPS EAD, how to determine whether the DHS has issued an automatic extension of expiring EADs, and how to explain that the TPS status was extended on the Form I-9 (Employment Eligibility Verification).

J-1 Exchange Visitors & F-1 Students, including F-1s Changing to H-1B Status (“The Cap Gap”)

The handbook provides a detailed explanation on how to complete the I-9 for those individuals in J-1 exchange visitor status and F-1 and M-1 student status. Additionally, the handbook explains how to complete the I-9 for F-1 students who are changing status to H-1B and are eligible for a “cap-gap” extension of status and employment authorization. The handbook confirms that the student’s employment authorization will remain valid through September 30 of the calendar year for which the H-1B is filed, so long as the student’s H-1B status will begin on October 1. Additionally, the handbook advises that an employer must re-verify a student’s Form I-20 (Certificate of Eligibility for Nonimmigrant (F-1) Student Status). The I-20 must show that the cap-gap extension was endorsed by the student’s designated school official. Re-verification must be done no later than October 1.

H-1B Employees Changing Employers (Portability)

The handbook now states that an employee in valid H-1B status who changes (ports) to a new employer can begin to work with the new employer upon filing an H-1B petition with USCIS. The prior version of the handbook required the porting H-1B employee to obtain a Form I-797 (Receipt Notice) from USCIS before beginning work with the new employer. This approach created considerable delay because it often takes USCIS weeks to issue the official I-797.

The new version of the handbook explains that a porting H-1B employee may begin employment by presenting his or her Form I-94/I-94A (Arrival-Departure Record) issued for employment with the previous employer, along with his or her foreign passport, as a List A document. The employer should write “AC21” on the I-9, record the date that the new H-1B petition was submitted to USCIS in the margin next to Section 2 of the I-9, and attach documentation as specified in the handbook.

Extensions of Status

The handbook explains that an employee with a petition for extension of status timely filed before the employee’s work authorization expires is eligible for continued work authorization for up to 240 days beyond the expiration date of the authorization as long as the extension remains pending. The handbook provides a detailed explanation of how to complete the I-9 and the documentation to be attached for individuals in E-1, E-2, H-1B, H-2B, H-3, L-1, O-1, O-2, P-1, P-2, P-3, Q-1, R-1 and TN status who have timely filed extensions with the same employer.

Where an H-1B extension is timely filed and the extension remains pending, the employer should write “240-Day Ext.” and record the date the employer submitted the Form I-129 (Petition for a Nonimmigrant Worker) to USCIS in the margin of the I-9 next to Section 2.

Additionally, the handbook expands upon what documentation should be added to the I-9. Previously, the employer was advised to attach only the I-797. Now, the handbook adds that the employer should keep the following documents with the I-9 in this situation:

1. A copy of the new I-129 that was filed for the extension;
2. Proof of payment for the filing of the new I-129; and
3. Evidence that the new I-129 was mailed to USCIS.
4. After the extension is filed, USCIS will issue a receipt notice (Form I-797(C)), which should also then be added and kept with the I-9.

When the extension of stay is approved, the employer should record in Section 3 the document title, number, and expiration date listed. The handbook adds that the employer must give the employee the I-94A, which is evidence of the employee’s employment authorized nonimmigrant status.

Interruptions in Employment

The handbook now provides guidance to employers who are uncertain about whether a new I-9 is required after an employee has experienced a brief interruption in employment. The handbook provides examples of situations which include “continuing employment,” such as maternity or paternity leave, leaves of absence, transfer from one business unit to another business unit of the same employer, or the same employer at another location. An employer is not required to complete a new I-9 in these situations so long as there is a reasonable expectation of employment at all times.

Electronic Retention of Forms I-9 and Documentation of Electronic Storage Systems

The handbook offers expanded guidance to employers who use paper, electronic systems, or a combination of paper and electronic systems to keep I-9 forms. Employers must follow certain guidelines, outlined in the handbook, should they choose to keep their I-9s in an electronic generation or storage system. One requirement is that an employer must maintain and make available upon request complete descriptions of the electronic generation and storage system and the indexing system that permit the identification and retrieval of documents and records maintained. Employers who are currently using, or contemplating the future use of, an electronic retention system should review the information outlined in the handbook and consult their Alliance of Business Immigration Lawyers (ABIL) attorney for guidance.

E-Verify and Federal Contractors

The previous version of the handbook offered guidance to employers regarding participation in E-Verify and the corresponding I-9 responsibilities, such as maintaining a photograph of a List B document. The new version of the handbook provides additional guidance to federal contractors about their responsibilities under the amended Federal Acquisition Regulation (FAR) related to employment eligibility verification. The handbook explains that the regulation requires contractors with a federal contract that contains a FAR E-Verify clause to use E-Verify for their new hires and all employees (existing and new) assigned to the contract. The handbook also states that where an employee working for a FAR employer undergoes a name change and the employer chooses to verify existing employees by updating existing I-9 forms, a new I-9 must be completed.

Questions and Answers Section

The handbook has expanded its Questions and Answers (Q&A) section to provide clarification to employers in a variety of situations related to the I-9, including the following helpful information:

• A Native American tribal document is acceptable as both a List B and List C document, and no other documents need be presented. For a current list of tribes recognized by the U.S. federal government, employers may visit the website of the Bureau of Indian Affairs at http://www.bia.gov. A Certificate of Indian Status does not constitute an acceptable Native American tribal document and may not be accepted for I-9 purposes.
• An employer may accept a Social Security Card that has not been signed as a valid List C document.
• An employee may present an unexpired I-94 card notated with work-authorized status in two situations: (1) as a List A document along with his or her foreign passport; or (2) as a List C document demonstrating work authorization from USCIS.
• Employers may accept documents bearing a different name than that which the employee has indicated in Section 1 of the I-9, so long as the documents reasonably relate to the employee. The employer may want to attach a brief memo to the I-9 detailing the employee’s reason for the name discrepancy, including copies of any supporting documentation the employee chooses (but is not required) to provide.

The revised handbook for employers is available at http://www.uscis.gov/files/form/m-274.pdf.

For more information on the updated employer handbook or on potential changes to your I-9 policies and procedures, contact your ABIL attorney.

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2. E-Verify Update: USCIS Updates Web Interface, Launches Newsletter; House Hearings Soon

U.S. Citizenship and Immigration Services (USCIS) has made the following changes to its E-Verify Web interface:

• added U.S. Passport Photo Matching, a new feature that uses data and photos from the U.S. passport system to assist in the verification process
• changed the title “Designated Agent” to “E-Verify Employer Agent”
• updated the following USCIS publications:
• E-Verify User Manual for Employers
• E-Verify User Manual for Federal Contractors
• E-Verify User Manual for E-Verify Employer Agent
• E-Verify Quick Reference Guide for Employers
• E-verify Quick Reference Guide for E-Verify Employer Agent

USCIS has also launched E-Verify Connection, a newsletter on E-Verify developments. The first issue is available at http://www.uscis.gov/USCIS/Verification/E-Verify/Publications/E-Verify-Connection.pdf. You may join the newsletter distribution list by e-mailing “subscribe” to [email protected].

For more information on these developments, see http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=04db32802cbc8210VgnVCM100000082ca60aRCRD&vgnextchannel=04db32802cbc8210VgnVCM100000082ca60aRCRD.

In related news, Florida recently began requiring certain state agencies and contractors to use E-Verify, while Rhode Island has rescinded its E-Verify requirement for state contractors.

Also, Rep. Elton Gallegly (R-Cal.) will chair the U.S. House of Representatives’ Subcommittee on Immigration Policy and Enforcement. Observers had expected Rep. Steve King (R-Iowa) to be appointed instead, but he is now vice chairman. Rep. Gallegly is considered by many observers to be hawkish on immigration but less controversial than Rep. King. Among other things, Rep. Gallegly was instrumental in creating the pilot program that led to E-Verify. He is expected to hold hearings on E-Verify soon.

The American Immigration Lawyers Association has published a fact sheet on Rep. Gallegly, available at http://www.aila.org/content/default.aspx?docid=34122.

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3. Visa Numbers Move Slowly

The Department of State has released the Visa Bulletin for February 2011. Priority dates in several employment-based (EB) categories moved ahead, although not by much overall. For example, the third preference “Other Workers” worldwide category advanced from April 22, 2003, to May 1, 2003. The Mexico third preference category advanced from April 15, 2003, to July 8, 2003. Many categories remain Current.

It had been initially reported that the India EB-2 category was Current, but the Visa Office corrected that erroneous information. The India second preference priority date remains at May 8, 2006.

The February 2011 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5228.html.

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4. USCIS Releases H-1B, H-2B Cap Counts

As of January 7, 2011, U.S. Citizenship and Immigration Services (USCIS) reported that 58,700 cap-subject H-1B petitions were filed, of a maximum of 65,000 available under the fiscal year (FY) 2011 cap. USCIS began accepting H-1B petitions on April 1, 2010, that are subject to the FY 2011 cap.

USCIS noted that it has received over 20,000 petitions filed on behalf of individuals who have earned a master’s degree or higher from a U.S. institution of higher education. USCIS continues to accept these petitions and they will be counted against the regular H-1B cap until the regular cap is reached.

For the H-2B temporary nonagricultural category, the cap is 66,000 per fiscal year, with 33,000 allocated in the first half of the year and 33,000 in the second half. As of January 7, 2011, USCIS had approved 33,243 beneficiaries (with 2,360 pending) for the first half of FY 2011, and had approved 1,452 so far for the second half (with 677 pending). USCIS noted that the estimated number of beneficiaries needed to be included on petitions filed with USCIS to reach the H-2B cap will always be higher than the actual cap, to allow for withdrawals, denials, and revocations.

The Alliance of Business Immigration Lawyers (ABIL) recommends filing H-1B and H-2B petitions now. For advice or help in filing a petition, contact your local ABIL attorney. To locate an ABIL attorney, go to https://www.abil.com/ and click on “ABIL Attorneys” or “Global Attorneys.”

The H-1B cap count and related information is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD. For more on H-1B statistics and filing requirements, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD. The H-2B cap count and related information is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=356b6c521eb97210VgnVCM100000082ca60aRCRD&vgnextchannel=d1d333e559274210VgnVCM100000082ca60aRCRD.

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5. DHS Adds New Countries to H-2A, H-2B Programs; Drops Indonesia

The Department of Homeland Security (DHS), in consultation with the Department of State (DOS), has identified 53 countries whose nationals will be eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) programs for the coming year. Of those countries, 15 were designated for the first time this year.

With limited exceptions, USCIS approves petitions only for nationals of countries designated to participate in the H-2A and H-2B programs. A new list of eligible countries is expected to be published in a Federal Register notice on January 18, 2011; the designations are valid for one year from the date of publication.

Effective January 18, 2011, nationals from the following countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Honduras, Hungary, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Nauru, The Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay, and Vanuatu.

Of these countries, the following were designated for the first time this year: Barbados, Estonia, Fiji, Hungary, Kiribati, Latvia, Macedonia, Nauru, Papua New Guinea, Samoa, Slovenia, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

DHS and DOS have determined that Indonesia does not warrant a renewed designation as a participating country in the H-2A and H-2B programs for 2011.

The new list does not affect the status of individuals who currently hold valid H-2A or H-2B status. A national from a country that is not on the list may be the beneficiary of an approved H-2A and H-2B petition if the Secretary of Homeland Security determines, in her sole and unreviewable discretion, that it is in the U.S. interest.

The USCIS notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=88404e9c7c08d210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. USCIS Releases Pending Employment-Based Adjustment of Status Inventory

U.S. Citizenship and Immigration Services (USCIS) has released a report of the agency’s total pending inventory of applications for employment-based green cards (Form I-485, Application to Register Permanent Residence or Adjust Status). USCIS also has posted five other reports by country of chargeability (China, India, Mexico, Philippines, and All Other Chargeability).

The “Pending Employment-Based Form I-485 Report” shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.

Because of historically higher demand for visas from China, India, Mexico, and the Philippines, each of those countries has its own separate report.

The January 2011 report is available at http://www.uscis.gov/USCIS/statistics/Employment%20Based%20I-485%20Pending%20Inventory%20as%20of%20January%2005,%202011.pdf. For more information, see the USCIS Q&A at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextchannel=ae853ad15c673210VgnVCM100000082ca60aRCRD&vgnextoid=5e170e6bcb7e3210VgnVCM100000082ca60aRCRD.

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7. USCIS Issues Policy Memo Disallowing Concurrent Filings for Special Immigrant Religious Workers

In January 2011, U.S. Citizenship and Immigration Services released a policy memorandum dated November 9, 2010, which states that any Form I-485 (Application to Register Permanent Residence or Adjust Status) where the underlying basis for adjustment is an I-360 petition for a special immigrant religious worker must be filed based on an approved I-360 petition. USCIS service centers and offices (including the lockboxes) must reject any Forms I-485, I-765 (Application for Employment Authorization), or I-131 (Application for Travel Document) filed concurrently with or based on a pending I-360 petition seeking the special immigrant religious worker classification.

The new guidance was issued pursuant to a decision by the U.S. Court of Appeals for the Ninth Circuit (Ruiz-Diaz v. United States, No. 09-35734 (9th Cir. Aug. 20, 2010)). The memo notes that any I-485 based on an I-360 religious worker petition filed before November 9, 2010, will be accepted and adjudicated pursuant to the guidelines established in an earlier memorandum issued on August 5, 2009 (Memorandum HQDOMO AD09-45, “Clarifying Guidance on the Implementation of the District Court’s Order in Ruiz-Diaz v. United States, No C07-1881RSL (W.D. Wash. June 11, 2009)”).

The new memo is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2011/January/Ruiz-Diaz_Policy_Memo.pdf.

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8. New Publications and Items of Interest

GAO report on H-1B program. The U.S. Government Accountability Office (GAO) has published “H-1B Visa Program: Reforms Are Needed To Minimize the Risks and Costs of Current Program.” The GAO found that demand for new H-1B workers is largely driven by a small number of employers. From 2000 to 2009, over 14 percent of all initial petitions were submitted by cap-exempt employers, the GAO said, and only a few employers (fewer than 1 percent) garnered over one-quarter of all H-1B approvals.

Most interviewed companies said the H-1B cap and program created costs but were not factors in their decisions to move research and development overseas. The 34 H-1B employers GAO interviewed reported that the cap created some additional costs, although its impact depended on the size and maturity of the company. For example, in years when visas were denied by the cap, most large firms reported finding other (sometimes more costly) ways to hire their preferred job candidates. On the other hand, small firms were more likely to fill their positions with different candidates, which they said resulted in delays and occasional economic losses, particularly for firms in rapidly changing technology fields.

Limitations in agency data and systems hinder tracking the cap and H-1B workers over time. The total number of H-1B workers in the U.S. at any one time, and information about the length of their stay, is unknown, the GAO said. The agency concluded that the H-1B program, as currently structured, may not be used to its full potential and may be detrimental in some cases. The report offers several matters for congressional consideration, including that Congress re-examine key H-1B program provisions and make appropriate changes as needed. The GAO also recommends that the Departments of Homeland Security and Labor take steps to improve efficiency, flexibility, and monitoring of the H-1B program.

The full report is available at http://www.gao.gov/products/GAO-11-26. Highlights are available at http://www.gao.gov/highlights/d1126high.pdf.

National Agricultural Workers Survey data. The Department of Labor’s Employment and Training Administration has released National Agricultural Workers Survey data for fiscal years 1989-2009. The survey contains information from 52,479 in-person interviews with hired crop farm workers. The interviews were conducted in 467 counties and 40 states between October 1, 1988, and September 30, 2009. The document describes the data and provides analysis tips.

The notice is available at http://wdr.doleta.gov/directives/corr_doc.cfm?docn=2974. The document is available at http://wdr.doleta.gov/directives/attach/TEN/ten2010/TEN_21-10.pdf, and additional information and the data are available for downloading at http://www.doleta.gov/agworker/naws.cfm.

SEVIS/SEVP schools and statistics. U.S. Immigration and Customs Enforcement (ICE) has updated the list of approved schools under the Student and Exchange Visitor (SEVP) program. The list is available at http://www.ice.gov/doclib/sevis/pdf/ApprovedSchools.pdf. A clickable map is available at http://www.ice.gov/sevis/map/approvedschoolsmap.htm. The latest quarterly review, “SEVIS By The Numbers,” a statistical breakdown of the Student and Exchange Visitor Information System’s performance and trends in foreign student representation in U.S. academic and exchange programs, is available at http://www.ice.gov/doclib/sevis/pdf/quarterly_report_ending_sept2010.pdf.

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9. Member News

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was named by Georgia Trend magazine as one of the 100 most influential Georgians in 2011. People who made the list were those who “affect the course of events in Georgia” and “influence what you think and how you live.” Mr. Kuck’s profile notes that Mr. Kuck “has spent his professional life in the pursuit of justice.” See http://www.georgiatrend.com/cover-story/01_11_mig.shtml.

Mr. Kuck also has had a new blog entry published, “Why a Company Should Not Audit Its Own Forms I-9,” which discusses and provides a link to the ICE I-9 field manual and argues that I-9 self-audits typically result in more difficult situations for the employer than if an audit is done by a qualified, experienced, independent auditor, such as an attorney. The blog is available at http://www.electronici9.com/?p=940.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) has published several new blog entries. “The Absurdity of the Birthright Citizenship Act of 2011,” which discusses the granting of citizenship to those born in the U.S., is available at http://cyrusmehta.blogspot.com/2011/01/absurdity-of-birthright-citizenship-act.html. “One Year After the Neufeld Memo: Can the Beast Ever Be Tamed?,” which discusses questioning of H-1B employers and workers, is available at http://cyrusmehta.blogspot.com/2011/01/one-year-after-neufeld-memo-can-beast.html.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) has published a new blog entry, “Rethinking Employment-Based Immigration: Stop the GOP’s Slide Toward Socialism,” which takes a look at Republican efforts to increase enforcement and expand E-Verify participation. He argues that a truly Republican approach would lift the “red tape” burden of these programs from the shoulders of employers, and recommends 13 actions the GOP should take. The blog is available at http://www.nationofimmigrators.com/?p=377.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) has co-authored a new law review article in the Fordham Urban Law Journal (38 Fordham Urb. L.J. 183 (2010)). The article, “Attracting the Best and the Brightest: A Critique of the Current U.S. Immigration System,” focuses on problems in the EB-1-1, EB-1-2, and NIW areas. The article first examines how other national immigration systems entice the best and brightest immigrants. It then examines the current U.S. immigration system and its evolution since the Immigration Act of 1990. Finally, the article suggests how the United States can improve its immigration system to continue to attract talented immigrants.

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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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