Headlines:

1. DREAM Act Fails in Senate – Prospects are dim for further developments in the near future, although Democrats vowed to push for the legislation and to include it in any comprehensive immigration reform bill.

2. USCIS Delays Deemed Export Attestation on New I-129 – The new edition of Form I-129, Petition for a Nonimmigrant Worker, went into effect on December 23, 2010, but petitioners may leave Part 6 blank until February 20, 2011.

3. File H-1B Petitions Now, ABIL Advises; USCIS Plans Proposed Rule to Establish Electronic H-1B Pre-Registration – 53,900 cap-eligible petitions have been approved or are pending.

4. USCIS Issues Final Rule for CNMI-Only Investor Program – The “E-2 CNMI Investor Visa” allows foreign long-term investors to reside in the CNMI through December 2014; petitions will be accepted beginning January 18, 2011.

5. CBP Expands Global Entry ‘Trusted Traveler’ Program to Mexicans, SENTRI, NEXUS Members – CBP reports that the program “reduces average wait times by 70 percent while maintaining and enhancing security.”

6. USCIS Seeks OMB Approval for New E-Verify Employer Survey – The University of Arizona will conduct the survey of 900 employers, and final summary results will be publicly released.

7. ABIL Global: Turkey Implements Significant Changes in Work Permit Criteria – It is unprecedented for the Ministry to publicly announce concrete details of adjudication factors.

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. DREAM Act Fails in Senate

The House of Representatives passed the DREAM (Development, Relief and Education for Alien Minors) Act on December 8, 2010, but the Senate failed to pass the bill on December 18. The outcome was 55-41, which was five votes short of the 60 needed to bypass a filibuster by Republicans and move the bill forward.

Prospects are dim for enactment in the near future, although Democrats vowed to push for the legislation and to include it in any comprehensive immigration reform bill. President Barack Obama said he found the results “incredibly disappointing” but that his administration “will not give up on the DREAM Act, or on the important business of fixing our broken immigration system.” House Speaker Nancy Pelosi said, “Though disappointed by the result of today’s DREAM Act vote in the Senate, we are not deterred in our determination to continue advocating for this critical legislation.” Sen. Lindsey Graham (R-S.C.) countered, “We’re not going to pass the DREAM Act or any other legalization until we secure our borders. It will never be done stand-alone. It has to be part of comprehensive immigration reform.” (The Senate passed a $600 million border security bill in August.)

The DREAM Act, which has a long history, would allow qualified undocumented children to apply for conditional legal immigration status and eventually to obtain permanent residence if they meet certain requirements.

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2. USCIS Delays Deemed Export Attestation on New I-129

The new edition of Form I-129, Petition for a Nonimmigrant Worker, took effect on December 23, 2010, as previously announced by U.S. Citizenship and Immigration Services. 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.

Part 6 of the new I-129 contains a new “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” 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). Until February 20, 2011, petitioners may leave Part 6 blank.

As background, U.S. law prohibits the export of controlled technology and technical data to certain foreign nationals located within the United States without a license to do so. U.S. law treats as an export the release of controlled technology or technical data to a foreign national working in the United States, even if the company does not export anything overseas. Technology or source code is considered released for export when it is made available to foreign nationals for visual inspection (such as reading technical specifications, plans, or blueprints), when technology is exchanged orally, or when technology is made available by practice or application under the guidance of persons with knowledge of the technology. Such exports of controlled technology or technical data must be authorized through an export license issued by the Commerce or State Department before release to the nonimmigrant foreign national. 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.

The Commerce Department lists items subject to export licenses at http://www.access.gpo.gov/bis/ear/ear_data.html#ccl. The State Department’s export regulations are at http://www.pmddtc.state.gov/regulations_laws/itar.html. The Commerce Department has a series of six training modules, “Essentials of Export Controls,” at http://www.bis.doc.gov/seminarsandtraining/essentials_of_export_ctrls.htm. The training modules can also be downloaded in PDF format at http://www.bis.doc.gov/seminarsandtraining/training-modules/essentials_of_export_controls_modules_1_6.pdf.

A two-page fact sheet focusing on universities, which includes suggested questionnaire content for the new export controls certification, is available at http://xa.yimg.com/kq/groups/15854395/2106905181/name/I-129%20AUECO%20Practice%20Tips.pdf.

A related USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ef1ee46afc5fc210VgnVCM100000082ca60aRCRD&vgnextchannel=e7801c2c9be44210VgnVCM100000082ca60aRCRD.

For additional 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. File H-1B Petitions Now, ABIL Advises; USCIS Plans Proposed Rule to Establish Electronic H-1B Pre-Registration

H-1B filings may increase as the 65,000 numerical limit (cap) approaches. The Alliance of Business Immigration Lawyers (ABIL) recommends filing petitions now. U.S. Citizenship and Immigration Services (USCIS) reports that as of December 17, 2010, 53,900 cap-eligible petitions have been approved or were pending. USCIS has also receipted 19,700 H-1B petitions for individuals with advanced degrees, near that separate cap of 20,000. Once the caps are reached, no new H-1B cap-subject petitions will be accepted until April 1, 2011.

In related news, USCIS plans to propose a rule to establish electronic pre-registration for H-1B petitions. Reportedly, this would mean that an employer would first register online and wait for an H-1B number before filing the full petition with documentation. The idea is to reduce the burden on both employers and the agency in preparing and submitting petitions, entering data, and returning non-selected petitions. Details of the proposed rule and a date of publication have not yet been released.

For advice or help in filing an H-1B 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.” For more on H-1B statistics and filing requirements, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD.

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4. USCIS Issues Final Rule for CNMI-Only Investor Program

U.S. Citizenship and Immigration Services (USCIS) issued a final rule on December 20, 2010, that creates a nonimmigrant investor visa classification in the Commonwealth of the Northern Mariana Islands (CNMI). The “E-2 CNMI Investor Visa” allows foreign long-term investors to reside in the CNMI through December 2014. Petitions for the E-2 CNMI Investor classification will be accepted beginning January 18, 2011. Petitions received before that date will be rejected.

Authorized by the Consolidated Natural Resources Act (CNRA) of 2008, the E-2 CNMI Investor Visa will be issued for two years, is renewable, and is valid only in the CNMI. The investor’s spouse and children may also apply for status as dependents of the investor.

Long-term investors are individuals with certain CNMI-issued investor permits that required a fixed minimum investment amount and whose permits can be renewed over a period of multiple years.

Those eligible for E-2 CNMI Investor status include long-term business, foreign, and retiree foreign investors. To qualify, the investor must:

• have been admitted to the CNMI with a long-term investor visa under CNMI immigration law before November 28, 2009;
• have continuously maintained residence in the CNMI with long-term investor status;
• currently maintain the investment(s) that formed the basis for the CNMI long-term investor status; and
• otherwise be admissible to the U.S. under the Immigration and Nationality Act.

Investors must file an initial petition before January 18, 2013, and must use the existing Petitioner for a Nonimmigrant Worker, Form I-129, with Supplement E. After the initial petition is granted, extensions are available until December 31, 2014. The processing fee is $325, plus an $85 biometrics fee for certain beneficiaries who require an initial grant of status in the CNMI. Fee waivers for inability to pay are available.

The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-31652.pdf. The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5fb279cebb4fc210VgnVCM100000082ca60aRCRD&vgnextchannel=a2dd6d26d17df110VgnVCM1000004718190aRCRD. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ab3379cebb4fc210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD. For more information, see the CNMI Web page at http://www.uscis.gov/cnmi.

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5. CBP Expands Global Entry ‘Trusted Traveler’ Program to Mexicans, SENTRI, NEXUS Members

U.S. Customs and Border Protection (CBP) published two Federal Register notices on December 29, 2010, announcing the expansion of Global Entry benefits. One notice extends Global Entry enrollment to eligible Mexican nationals; the other notice extends Global Entry benefits to SENTRI and NEXUS members.

Global Entry is a CBP trusted traveler program that allows pre-approved members an alternative to regular passport processing lines. CBP reports that the program “reduces average wait times by 70 percent while maintaining and enhancing security.”

To become a member of Global Entry, eligible Mexican nationals must complete an online application available at the Global Online Enrollment System (GOES, available at https://goes-app.cbp.dhs.gov/), pay a non-refundable $100 application fee, pass a background investigation conducted by both CBP and the Mexican government, and undergo an in-person interview with a CBP officer at an enrollment center. Mexican nationals must satisfy all requirements of the Global Entry pilot program to become members. CBP began accepting applications from eligible Mexican nationals on December 29.

Also as of that date, SENTRI members may now apply for Global Entry benefits for no additional fee. CBP advises SENTRI members to check their status on the GOES Web site and indicate their wish to use Global Entry. SENTRI members who are Mexican nationals must pass a risk assessment conducted by the Mexican government before receiving full Global Entry benefits.

All NEXUS members will also be able to receive the benefits of Global Entry at no additional cost via automated kiosks at participating airports. CBP advises NEXUS members to check their status in their GOES accounts to confirm whether they need to submit 10 fingerprints or any other necessary documentation to receive Global Entry benefits.

The Global Entry pilot program was launched in 2008 and is available at 20 major airports in the U.S for approved U.S. citizens, lawful permanent residents, and citizens of the Netherlands over 14 years of age who have a valid machine-readable passport and who consent to background screening. To date, Global Entry members have used the kiosks more than 600,000 times, and there are more than 100,000 members in the program.

Global Entry applicants may complete their interview and biometric data collection at enrollment centers at any of the 20 sites. Approved members may use kiosks at any of the sites to complete their CBP processing upon arrival from international travel. At the kiosk, Global Entry members insert their passport or lawful permanent resident card into a document reader, provide digital fingerprints for comparison with fingerprints on file, answer customs declaration questions on the kiosk’s touch screen, and then present a transaction receipt to CBP officers before leaving the inspection area.

CBP has signed arrangements with the governments of the United Kingdom and Germany to reciprocate Global Entry benefits with citizens from their countries.

CBP’s announcement is available at http://www.cbp.gov/xp/cgov/travel/travel_news/global_published.xml. The Federal Register notices are available at http://edocket.access.gpo.gov/2010/pdf/2010-32832.pdf (Mexicans) and http://edocket.access.gpo.gov/2010/pdf/2010-32829.pdf (NEXUS and SENTRI participants).

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6. USCIS Seeks OMB Approval for New E-Verify Employer Survey

U.S. Citizenship and Immigration Services is seeking Office of Management and Budget (OMB) approval for a new information collection to survey 900 employers about the E-Verify program. The University of Arizona will conduct the survey, and final summary results will be publicly released.

According to a USCIS letter to be sent to potential participating employers, “[t]he goals of the evaluation are to understand the knowledge and perception of the E-Verify program and its utility and barriers to utilization of E-Verify. Congress is interested in this information to help it determine whether E-Verify should be made mandatory for a larger group of employers and, if so, what modifications to the current Program need to be made.”

USCIS’ OMB notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-32546.pdf. The employer letter is available at http://www.regulations.gov/#!documentDetail;D=USCIS-2010-0018-0004. The proposed survey is available at http://www.regulations.gov/#!documentDetail;D=USCIS-2010-0018-0007.

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7. ABIL Global: Turkey Implements Significant Changes in Work Permit Criteria

Turkey’s Ministry of Labor and Social Security released a communiqué on July 28, 2010, regarding criteria to be considered in adjudicating work permits. The communiqué is pursuant to Article 13 of the Implementation Regulation on the Foreigner’s Work Permit Code (#4817). It is unprecedented for the Ministry to publicly announce concrete details of adjudication factors.

The Ministry indicates in the communiqué that in adjudicating work permits, the following criteria must be met:

1. New 5:1 Ratio: There must be at least five Turkish citizen employees per foreign national applicant, as evidenced on payroll records. (Exception: Newly established legal entities can be founded by a foreign individual. If such an investor owns at least 20 percent (but amounting to no less than Turkish Lira/TRY 40,000 – the current exchange rate is 1.5 TRY to 1 USD) worth of shares of the entity and, within 6 months, the five-employee criterion can be met, a work permit may be approved for the foreign partner/investor.)
2. Capital requirements: The employer’s paid in capital must be at least TRY 100,000. In the alternative, the employer may show gross (assumedly annual) sales amounting to TRY 800,000, or exports with a gross annual value of US $250,000. (Exception: In the case of a nonprofit or private employer, criterion #2 will not apply.)
3. Salary: The foreign employee’s salary must be commensurate with the position offered. More specifically, certain managers, pilots, and engineers/architects and teachers cannot be paid less than a specified amount times the minimum wage. (Gross minimum wage is TRY 760.50 for the period of July 1, 2010, through December 31, 2010.) All others must be paid at least 1.5 times the minimum wage.

The communiqué offers guidance on other professions and workplaces as well.

Additionally, issued in the Official Gazette on July 31, 2010, were changes to the “Application Regulation of Law No. 4817 Related to Work Permits for Foreigners.”

The two most significant amendments specify:

1. Online filing: Work Permit applications must be filed online. The signed application form and supporting documents must be sent to the Ministry within 6 business days from the online application date.
2. Employer’s finances: The Ministry now again requires the prior year’s profit-and-loss statement and balance sheet approved by the certified financial advisor or Tax Office. (This reverses a decision in February 2010 to no longer require them in most cases.)

2010 has seen an unprecedented level of change in Turkish immigration law, both in procedures and details of adjudication criteria. Late in the year, the implementation of the online filing system caused a tremendous increase in adjudication time and formal “requests for further documentation.” It is hoped that in 2011, many of the above changes will be integrated fully so that adjudication will return to a smoother process.

The communiqué is available at http://www.yabancicalismaizni.gov.tr/tr/index.html.

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8. New Publications and Items of Interest

New E-Verify newsletter. U.S. Citizenship and Immigration Services has published the first issue of E-Verify Connection, available at http://www.uscis.gov/USCIS/Verification/E-Verify/Publications/E-Verify-Connection.pdf.

ICE seeks to remove the wrong people. TRACImmigration reports that immigration courts are rejecting a significant and increasing number of cases in which Immigration and Customs Enforcement (ICE) has sought to remove individuals from the U.S., according to an analysis of recent case-by-case government data. Key findings include:

• During the last three months of fiscal year (FY) 2010, the rejection rate of ICE requests for removal was nearly one out of three, or 31 percent. This turndown rate is up from one out of every four 12 months earlier.
• For all of FY 2010, some courts turned down ICE removal requests more than half of the time. Among them were the immigration courts in New York City (70% turned down), Oregon (63% turned down), Los Angeles (63% turned down), Miami (59% turned down) and Philadelphia (55% turned down).
• Considering the records for the last five years, immigration courts determined that more than a quarter of a million individuals for whom ICE sought removal were entitled to remain in the U.S.

The report is available at http://trac.syr.edu/immigration/reports/243/.

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9. Member News

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) has published a new blog entry, “Obama Is To Blame for the Failure of Immigration Reform,” which argues that the Obama administration and Democrats failed to advocate sufficiently for the DREAM Act. The blog is available at http://musingsonimmigration.blogspot.com/2010/12/obama-is-to-blame-for-failure-of.html.

Mr. Kuck was reported on or quoted recently in the Wall Street Journal (http://online.wsj.com/article/SB10001424052748704098304576021860881102514.html), the Atlanta Journal-Constitution (http://www.ajc.com/news/georgia-politics-elections/georgia-takes-action-on-774349.html), and the PoliJAM Times (http://www.polijam.com/index.php?option=com_content&view=article&id=44338:immigration-crackdown-creates-backlog&catid=53:us&Itemid=29). In the AJC article on proposed Georgia immigration enforcement legislation patterned after the new Arizona law, Mr. Kuck said, “Let’s not get carried away with some plan that doesn’t solve any problems, creates more chaos than it solves, doesn’t have any long-term solution, and they don’t have the money to enforce.”

Ron Klasko’s (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm) firm, Klasko, Rulon, Stock & Seltzer, LLP, has launched a new micro-website with information on non-PERM immigration options and self-petition green cards for scientists, researchers and clinicians. It provides extensive information on Extraordinary Ability (EA), National Interest Waiver (NIW) and Outstanding Researcher/Professor (OR/P) petitions. It also includes information on nonimmigrant visa issues, such as understanding the J-1 home residency requirement and obtaining a waiver, as well as using the O-1 as a bridge to a waiver. The site also provides important information relating to maintaining valid nonimmigrant status while the permanent residence application is pending. See http://www.eb1immigration.com/.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) has published a new blog entry, “Consequences of Visa Bulletin Cutoff Date Retrogression Under the Child Status Protection Act,” which discusses the impact of the retrogression of visa priority dates on those who are near 21 years old. The blog is available at http://cyrusmehta.blogspot.com/2010/12/consequences-of-visa-bulletin-cutoff.html. He also recently co-authored the blog entry, “Keeping Hope Alive: President Obama Can Use His Executive Power Until Congress Passes the DREAM Act,” available at http://cyrusmehta.blogspot.com/2010/12/keeping-hope-alive-president-obama-can.html. Mr. Mehta also co-authored an article, “Keeping Track: Select Issues in Employer Sanctions and Immigration Compliance,” available at https://www.abil.com/articles/ABIL%20Articles%20-%20I-9%20-%20Employer%20Sactions%20&%20Immigration%20Compliance%20(Mehta).pdf.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) has published a new blog entry, “The 2010 Nation of Immigrators Awards – The IMMIs,” which takes a look back at “365 days of immigration dysfunction – American style.” The blog is available at http://www.nationofimmigrators.com/?p=375. He also recently published “Immigration DREAMers and the Way Forward: An Open Letter to President Obama,” available at http://www.nationofimmigrators.com/?p=374. Mr. Paparelli may be followed on Twitter at http://twitter.com/angelopaparelli.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in a December 22, 2010, Reuters article about the EB-5 immigrant investor program. Mr. Yale-Loehr noted that properly administered, the EB-5 program benefits the U.S. and investors in four ways. “No. 1, it’s a win for the U.S. businesses that might not be able to finish a project but for foreign financing…. No. 2, it’s a win for the foreign investor, obviously, because they get a green card out of it. No. 3, it’s a win for the U.S. taxpayer because they are seeing the benefits of an increase in economic activity at no expense … and No. 4, it’s a win for U.S. workers because jobs are being created.” The article is available at http://ca.reuters.com/article/topNews/idCATRE6BL2KJ20101222.

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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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Headlines:

1. DOS Discusses Upcoming Employment Visa Number Priority Cut-Off Dates – It is unlikely that any cut-off dates will be set in the employment first preference during the coming months.

2. USCIS Issues Reminder on New Fees, Q&A on New Fee Schedule; Makes Corrections, Clarifications – The new fee schedule for immigration-related applications and petitions took effect on November 23, 2010.

3. Do’s and Don’ts, Tips on SSN “No-Matches” Released – The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices issued do’s and don’ts for employers and employees on Social Security Number “no-matches”

4. USCIS Revises I-129 Petition Form; Imposes New Export Control Certification – The new version includes fee increases.

5. DOL Hits H-2A Employer With $1.3 Million in Back Wages, $136,500 in Fines – The Department of Labor’s Wage and Hour Division assessed the fines against a Georgia company for violating provisions of the H-2A temporary agricultural worker program.

6. ABIL Global: Belgian Corporate Immigration – A fast-track work permit can be obtained for, among others, highly skilled personnel and executive-level personnel earning a yearly gross salary exceeding a threshold, adapted on a yearly basis.

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. DOS Discusses Upcoming Employment Visa Number Priority Cut-Off Dates

The Department of State’s Visa Bulletin for December 2010 notes that it is unlikely that any cut-off dates will be set in the employment first preference during the coming months. It also appears unlikely that it will be necessary to establish a cut-off date other than those already in effect for the second preference category. Cut-off dates continue to apply to the China and India employment second preference categories due to heavy demand.

Based on current indications of demand, the Department said the “best case scenarios” for cut-off date movement each month are:

Employment Second:

• China: none to two weeks
• India: no movement

Employment Third:

• Worldwide: three to six weeks
• China: one to three weeks
• India: none to two weeks
• Mexico: although continued forward movement is expected, no specific projections are possible now
• Philippines: three to six weeks

The Department noted that the above ranges are estimates based on current demand patterns, and will be subject to possible fluctuations during the coming months.

The December 2010 Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5197.html.

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2. USCIS Issues Reminder on New Fees, Q&A on New Fee Schedule; Makes Corrections, Clarifications

The new fee schedule for immigration-related applications and petitions took effect on November 23, 2010. Applications or petitions postmarked or otherwise filed on or after this date must include the new fee or they will be rejected.

USCIS published the new fee schedule in the Federal Register on September 24, 2010, following a review of public comments received after publication of the proposed rule this past summer. The new fee schedule increases application and petition fees by an average of about 10 percent but does not increase the naturalization application fee.

USCIS issued a related Q&A that notes, among other things, that if mailed through a courier service, the date the item is entered into the courier’s service system is considered the postmark date.

Meanwhile, the American Immigration Lawyers Association (AILA) reported on November 19, 2010, that USCIS has confirmed that a receipt notice from a courier service or overnight mailing service will be considered a “postmark” for fee determination purposes.

USCIS has also corrected the new fee for refugee travel documents. As discussed in the preamble to the final rule, the agency had determined that the fee for a refugee travel document for an adult age 16 or older should match the fee charged for the issuance of a passport to a U.S. citizen ($110 plus a $25 execution fee). Accordingly, USCIS intended to reduce the fee for filing an Application for Travel Document, Form I-131, for refugees to $135 for an adult age 16 or older. The final rule inadvertently listed a fee of $165 for the I-131 refugee travel document for an adult age 16 or older. No other changes were made under this correction.

The Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=67b73dc5cb93b210VgnVCM100000082ca60aRCRD&vgnextchannel=5b33aca797e63110VgnVCM1000004718190aRCRD. The USCIS alert is available at http://www.aila.org/content/default.aspx?docid=33665. The correction notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-28719.pdf. A table listing the old and new fees is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=92c5e116de9eb210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-23725.pdf.

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3. Do’s and Don’ts, Tips on SSN “No-Matches” Released

The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices recently issued the following do’s and don’ts for employers on Social Security Number “no-match” letters. These are letters issued by the Social Security Administration (SSA) to employers stating that information supplied to the SSA does not match SSA records.

DO:

1. Recognize that name/SSN no-matches can result because of simple administrative errors.
2. Check the reported no-match information against your personnel records.
3. Inform the employee of the no-match notice.
4. Ask the employee to confirm his/her name/SSN reflected in your personnel records.
5. Advise the employee to contact the SSA to correct and/or update his or her SSA records.
6. Give the employee a reasonable period of time to address a reported no-match with the local SSA office.
7. Follow the same procedures for all employees regardless of citizenship status or national origin.
8. Periodically meet with or otherwise contact the employee to learn and document the status of the employee’s efforts to address and resolve the no-match.
9. Submit any employer or employee corrections to the SSA.

DON’T:

1. Assume the no-match conveys information regarding the employee’s immigration status or actual work authority.
2. Use the receipt of a no-match notice alone as a basis to terminate, suspend or take other adverse action against the employee.
3. Attempt to immediately reverify the employee’s employment eligibility by requesting the completion of a new Form I-9 based solely on the no-match notice.
4. Follow different procedures for different classes of employees based on national origin or citizenship status.
5. Require the employee to produce specific documents to address the no-match.
6. Ask the employee to provide a written report of SSA verification.

The document is available at http://www.justice.gov/crt/osc/pdf/publications/SSA/Employers.pdf. A similar document for employees is available at http://www.justice.gov/crt/osc/pdf/publications/SSA/Employees.pdf. A related FAQ is available at http://www.justice.gov/crt/osc/pdf/publications/SSA/FAQs.pdf.

Also, the National Employment Law Project issued “Top 10 Tips for Employers” on Social Security no-match letters. The tips are available at http://www.nilc.org/immsemplymnt/ssa-nm_toolkit/top_ten_tips_11-07-07.pdf, and are linked to a National Immigration Law Center “No-Match Letter Toolkit” available at http://www.nilc.org/immsemplymnt/ssa-nm_toolkit/index.htm.

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4. USCIS Revises I-129 Petition Form; Imposes New Export Control Certification

U.S. Citizenship and Immigration Services (USCIS) has issued a new version of the Petition for a Nonimmigrant Worker (Form I-129) to include the new fee increases. USCIS will accept previous versions of the form until December 22, 2010. Beginning on December 23, 2010, USCIS will only accept the revised form and will reject previous versions.

Among other changes, the revised I-129 form requires employers who are sponsoring foreign nationals for certain work visas to certify that they have made an export licensing determination regarding each employee sponsored. More specifically, employers must certify that they have evaluated the applicable export control regulations and have determined whether the employee will require an export license to perform the job.

Under the Department of Commerce’s export control regulations, the release of technical information to a foreign national is deemed an “export” to that person’s country of origin. That remains true even if the foreign national is lawfully employed. Compliance with this “deemed export rule” can be complex. Consult your Alliance of Business Immigration Lawyers attorney to determine how to comply.

Instructions and a link to the revised form (http://www.uscis.gov/files/form/i-129.pdf) are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f56e4154d7b3d010VgnVCM10000048f3d6a1RCRD.

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5. DOL Hits H-2A Employer With $1.3 Million in Back Wages, $136,500 in Fines

The Department of Labor’s Wage and Hour Division (WHD) is assessing J&R Baker Farms LLC of Ellenton, Georgia, $1,311,644 in back wages owed to 244 workers and $136,500 in fines for violating provisions of the H-2A temporary agricultural worker program.

WHD found that the vegetable farm allegedly failed to provide at least 75 percent of the hours promised in the work contract. WHD is asking an administrative law judge to order the farm to pay $1,311,644 in back wages to 148 U.S. workers and 96 H-2A workers and pay a fine of $122,000.

The investigation also discovered that the farm failed to provide a copy of the H-2A work contract at the time of recruitment to 29 U.S. workers who performed the same type of work as the H-2A workers. The Department is recommending a fine of $14,500 for that offense.

A press release announcing the findings is available at http://www.dol.gov/opa/media/press/whd/WHD20101532.htm.

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6. ABIL Global: Belgian Corporate Immigration

Since September 2009 when the last update on Belgian corporate immigration was published in the ABIL Immigration Insider, Belgian regulations regarding corporate immigration have not been subject to many changes, and the global economic crisis has not led to a change in Belgian corporate immigration legislation.

The rules on the most common work permit, particularly the fast-track work permit B for non EEA[1] highly skilled and executive-level personnel, are summarized below.

1. A fast-track work permit (meaning no resident labor is required) can still be obtained for, among others, highly skilled personnel and executive-level personnel earning a yearly gross salary exceeding a threshold, adapted on a yearly basis:

• To be considered highly skilled, a foreign employee must have received higher education resulting in a degree, and the yearly gross salary must exceed EUR 36,355 (amount for 2010)/EUR 36,604 (amount for 2011);
• Executive-level is legally[1] defined as “the people in charge of the daily management of the company, who are authorised to represent and to bind the employer, as well as personnel, immediately under the authority of the people in charge of daily management, if they also carry out tasks of daily management.” The yearly gross salary must exceed EUR 60,654 (amount for 2010)/EUR 61,071 (amount for 2011).
  [1] Act of 4 December 2007 with regard to the labor representative elections in 2008.

This fast-track work permit, valid for one year and renewable, is available for employees who meet the above conditions, regardless of whether they are seconded.

It is important to determine what is considered salary:

• Pursuant to Belgian labor law rules, all amounts (e.g., gross wages, commissions, bonuses, premium at the end of the year, single and double holiday pay) paid in consideration for the employee’s work are considered salary;
• Cost-of-living allowances (COLA) (allowances to compensate costs of life in Belgium and/or allowances that aim to reimburse exceptional disbursements, not foreseeable in the employment contract, such as moving costs or school costs) are not considered salary because they do not enrich the employee.

The processing time may vary depending on the place of employment in Belgium (Brussels, Flanders or Wallonia). However, the fast-track work permit can be processed within a short period. Unless the authorities decide they need additional information and/or documentation, the average processing time is two to three weeks. There are no filing fees.

2. Dependents can join a non-EEA work permit holder in Belgium. Spouses and children under 18 are entitled to residence in Belgium. Common-law partners of work permit holders also may be eligible to join their partner in Belgium:

• A “registered partnership, equivalent to marriage in Belgium” entitles a partner to residence in Belgium. The age threshold is 21 or, exceptionally, 18 years. At present, only registered partnerships from Denmark, Finland, Germany, Iceland, Norway, Sweden, and the United Kingdom qualify;
• Non-EEA common law partners may also cohabitate in Belgium provided (i) they enter into a registered partnership in Belgium, (ii) they have a “duly documented durable and stable relationship” for at least one year, (iii) they are both older than 21 (or 18) years, and (iv) they are both neither married nor involved in a durable relationship with another person.

The durability/stability of a relationship may be established as follows:

• The partners can prove they have been living together, prior to the application, for at least one year (i) uninterrupted, (ii) legally, and (iii) in Belgium or abroad; or
• The partners can prove they (i) have known one another for at least one year, (ii) have had frequent contact (by phone, mail, or e-mail), and (iii) have met at least three times before filing the application and that these meetings, all together, took at least 45 days; or
• The partners have a child together.

Proof of sufficient housing in Belgium (registered lease contract or proof of ownership of the house) as well as comprehensive health insurance are required to be entitled to residence as a non-EEA common-law partner.

3. If a common-law partner is entitled to join his or her partner who holds a Belgian work permit, he or she is eligible for a fast-track work permit, as are spouses.

As a matter of fact, a spouse of a non-EEA national who holds a Belgian work permit is eligible for a fast-track work permit. Circular Letter of 17 December 2008 clarifies that the reference to “spouse” also includes “registered partners,” who are entitled to reside in Belgium.

[1] EEA = European Economic Area, consisting of the 27 Member States of the European Union, Iceland, Liechtenstein and Norway. EEA nationals (apart from, until December 31, 2011, Bulgarian and Romanian nationals) are exempt: they can work without a Belgian work permit.

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7. New Publications and Items of Interest

Foreign student enrollment increases; mostly from China. The Institute of International Education, with support from the Department of State, released Open Doors Report on International Educational Exchange 2010, which notes that foreign student enrollments in the U.S. increased by 3 percent, to 690,923 students, during the 2009-2010 academic year. This year’s growth was primarily driven by a 30% increase in Chinese student enrollment in the United States to a total of nearly 128,000 students, or more than 18% of the total international student population. This makes China the leading sending country, the report said. Students from India increased by 2% to a total of nearly 105,000. Indian students represent 15% of all international students in U.S. higher education. The most notable decline was in Japanese students.

California was the top host state, and New York City was the top host city. Business and management, and engineering, remained the top two fields of study.

NAFSA: Association of International Educators and several other entities recently conducted a “snapshot” online survey on related issues. The survey asked educators to indicate whether they had seen a change in new enrollments from selected sending countries. The results indicate that new enrollments from China are increasing significantly, with 58% of institutions reporting increases and only 14% reporting declines (the rest reported level enrollments).

A press release that includes a discussion of the results, and related links, is available at http://www.iie.org/en/Who-We-Are/News-and-Events/Press-Center/Press-Releases/2010/2010-11-15-Open-Doors-International-Students-In-The-US.

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8. Member News

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was interviewed on Fox Atlanta’s Immigration Hour, on November 15, 2010. Mr. Kuck noted that states can’t afford to solve immigration issues on their own. A video of the interview is available at http://www.myfoxatlanta.com/dpp/news/newsmaker-georgia-immigration-reform-111510?CMP=201011_emailshare.

Sharon Mehlman (bio: https://www.abil.com/lawyers/lawyers-mehlman.cfm) is speaking on December 1, 2010, at the 13^th Annual American Immigration Lawyers Association’s New York Chapter Symposium in New York City. The panel is “RFEs – Engaging the Service Centers.”

Cyrus Mehta’s (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) latest blog entry, “BALCA’s New Decision in Denzil Gunnels Opens the Door to Submit More Evidence Following a Labor Certification Denial,” is available at http://cyrusmehta.blogspot.com/2010/11/balcas-new-decision-in-denzil-gunnels.html.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) recently spoke, along with Immigration Judge Denise Slavin, at the Berkeley Institute of Journalism on the issue of labor shortages and skills mismatches, including the “misguided approach to labor market testing adopted by the DOL requiring the employer to prove a negative” (the unavailability of able, qualified, and willing U.S. workers) and the need instead for the Department of Labor to declare additional labor shortage occupations on Schedule A of its PERM regulations. Information on the seminar, “The Changing Face of America: Going Beyond the Rhetoric on Immigration,” is available at http://journalism.berkeley.edu/conf/2010/immigration/.

Mr. Paparelli also released two new blog entries: “Do Touch the Immigration Junk – And Turn It Into DREAMs,” available at http://www.nationofimmigrators.com/?p=370, and “Two Sides of Immigration Exceptionalism: Of WikiLeakers and DREAMers,” available at http://www.nationofimmigrators.com/?p=371.

Bernard Wolfsdorf (bio: https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm) was quoted in the Wall Street Journal on November 22, 2010, in an article about the diversity visa lottery. “It shows that the U.S. immigration system doesn’t make sense,” he said. “We are allocating visas based on luck instead of knowledge.”

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) spoke at the National Press Club in Washington, DC, on November 15, 2010, about the prospects for immigration reform in the next two years. A podcast of the talk is available at http://www.lexisnexis.com/COMMUNITY/EMERGINGISSUES/blogs/focusonimmigration/archive/2010/11/19/mired-in-immigration-misery-can-the-brand-new-congress-create-fair-law.aspx.

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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. WHD Plans Nationwide Audit of Independent Contractor Misclassifications – Targeted industries may include may include agriculture, construction, distribution, food processing, hospitality, janitorial services, landscaping, manufacturing, restaurants, and sanitation.

2. District Court Finds NY Education Law Limiting Pharmacist Licenses to U.S. Citizens, LPRs Unconstitutional – A New York education law was found unconstitutional because it violated the plaintiffs’ rights under the Equal Protection Clause of the U.S. Constitution and encroached on federal immigration authority.

3. USCIS Designates Two AAO Decisions As Binding Precedent – The first decision holds that an employment-based petition must be “valid” initially if it is to “remain valid with respect to a new job,” and the second clarifies the definition of employment by an “American firm or corporation.”

4. State Dept. Seeks OMB Approval, Comments on Exchange Visitor Program Annual Reports – Annual reports will be submitted to DOS electronically “as soon as the mechanism for doing so is approved and in place.”

5. USCIS Opens New Office in Holtsville, Long Island – The full-service office has the capacity to serve approximately 400 residents of Nassau, Suffolk, and Queens Counties per day, including fingerprinting.

6. ABIL Global: India Changes Work-Related Visa Rules – In an effort to protect India’s non-technical workers and attract highly skilled foreign workers, the Indian Ministry of Home Affairs has issued an order and released a new FAQ.

7. ABIL Global: Canadian Regulatory Changes Will Affect Canadian Employers, Temporary Foreign Workers – Various changes to Canada’s Immigration and Refugee Protection Regulations will take effect on April 1, 2011, affecting both Canadian employers and their temporary foreign workers.

8. Member News – Member News

9. Government Agency Links – Government Agency Links

Details:

1. WHD Plans Nationwide Audit of Independent Contractor Misclassifications

The Department of Labor’s Wage and Hour Division (WHD) reportedly plans a nationwide audit this fall of misclassifications of employees as independent contractors, and U.S. Immigration and Customs Enforcement sent notices of inspection to employers nationwide in September 2010. WHD and ICE are working together on the independent contractor issue, and some analysts believe that WHD may be providing leads to ICE on potential Fair Labor Standards Act violators.

It is unclear which industries are targeted, but it is expected that they may include agriculture, construction, distribution, food processing, hospitality, janitorial services, landscaping, manufacturing, restaurants, and sanitation, according to the Society for Human Resource Management.

The Alliance of Business Immigration Lawyers (ABIL) recommends preparing for audits in advance and contacting your ABIL member for guidance on how to classify workers as employees or independent contractors, and how to conduct an internal audit to correct errors or omissions in I-9 work authorization verification forms and other relevant documentation.

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2. District Court Finds NY Education Law Limiting Pharmacist Licenses to U.S. Citizens, LPRs Unconstitutional

The U.S. District Court for New York ruled in a consolidated case on September 29, 2010, that a New York education law was unconstitutional because it violated the plaintiffs’ rights under the Equal Protection Clause of the U.S. Constitution and encroached on federal immigration authority.

The plaintiffs were 26 otherwise qualified pharmacists with temporary authorization to work in the U.S. Twenty-two of them had obtained H-1B visas. Most had applied for permanent residence and all had remained in the U.S. in compliance with federal immigration laws while their cases were pending. New York Education Law § 6805(1)(6) provides that “[t]o qualify for a pharmacist’s license, an applicant shall…be a United States citizen or an alien lawfully admitted for permanent residence in the United States.” The law excludes, among others, those who have received federal authorization to work in the U.S. temporarily.

Among other things, the court said:

The theory is that courts must be wary of state laws that exploit aliens’ political powerlessness by denying them the fruits of their societal contributions. Here, the State does not explain why this theory would apply any less to nonimmigrants, who also work, pay taxes, contribute to society, and have no political voice while they remain in this country. At one point, the State seems to suggest that non-LPR classifications should not receive strict scrutiny because non-LPRs have a different “constitutional status” by virtue of their weaker ties to the country….But what does it mean to say that nonimmigrants have a different “constitutional status” than LPRs, or that nonimmigrants “need not” be protected to the same extent as LPRs? The Supreme Court has already established that all aliens, even undocumented aliens, have rights under the equal protection clause.

The court pointed out that New York purported to ameliorate the dangers posed by transient or judgment-proof pharmacists through § 6805(1)(6), which was aimed at only a tiny subclass of pharmacists, instead of imposing generally applicable insurance or similar malpractice-related requirements upon the entire profession. The state also did not put forth any evidence that transience among New York pharmacists threatened public health or that nonimmigrant pharmacists, as a class, were considerably more transient than LPR and U.S. citizen pharmacists. As a consequence, the court said, the law did nothing to reduce the dangers of transience among citizen and LPR pharmacists while at the same time excluding longtime nonimmigrant residents, many of whom will become LPRs as soon as their pending green card applications are processed. “The question is not close; under any form of heightened scrutiny, § 6805(1)(6) fails,” the court concluded.

The decision is available at http://engnishimura.com/files/PhamacistLawUnconstitutional.pdf.

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3. USCIS Designates Two AAO Decisions As Binding Precedent

U.S. Citizenship and Immigration Services (USCIS) announced on October 20, 2010, that it has issued two decisions from the Administrative Appeals Office (AAO) as binding precedent for the agency.

The first decision, Matter of Al Wazzan, affirms USCIS’s denial of an application to adjust status to permanent residence and holds that an employment-based petition must be “valid” initially if it is to “remain valid with respect to a new job.” The second decision, Matter of Chawathe, reverses USCIS’s denial of an application to preserve residence for naturalization purposes and clarifies the definition of employment by an “American firm or corporation.”

Matter of Al Wazzan states that to be considered “valid,” a petition must have been filed for a person who is entitled to the requested classification and a USCIS officer must have approved the petition. An unadjudicated immigrant visa petition is not made “valid” merely through the act of filing the petition with USCIS or through the passage of 180 days, even though the law states that an employment-based immigrant visa petition remains valid with respect to a new job if the beneficiary’s application for adjustment of status has been filed and remains unadjudicated for 180 days.

Matter of Chawathe states that for purposes of establishing the requisite continuous residence in naturalization proceedings, a publicly held corporation may be deemed an “American firm or corporation” if the applicant establishes that the corporation is both incorporated in the U.S. and trades its stock exclusively on U.S. stock exchange markets. The decision also states that when an applicant’s employer is a publicly held corporation incorporated in the U.S. and trading its stock exclusively on U.S. stock markets, the applicant need not demonstrate the nationality of the corporation by establishing the nationality of those persons who own more than 51 percent of the stock of that firm. The decision further states that even if the director has some doubt as to the truth, if the petitioner submits relevant, probative, and credible evidence that leads the director to believe that the claim is “more likely than not” or “probably” true, the applicant has satisfied the standard of proof. If the director can articulate a material doubt, he or she may request additional evidence or, if that doubt leads the director to believe that the claim is probably not true, may deny the application or petition, the decision states.

Matter of Al Wazzan is available at http://www.justice.gov/eoir/vll/intdec/vol25/3699.pdf, and Matter of Chawathe is available at http://www.justice.gov/eoir/vll/intdec/vol25/3700.pdf.

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4. State Dept. Seeks OMB Approval, Comments on Exchange Visitor Program Annual Reports

The Department of State (DOS) has sent for Office of Management and Budget (OMB) approval a notice and request for comments on annual reports required from designated exchange visitor program sponsors to assist DOS in overseeing and administering the J-1 visa program. The reports provide statistical data on the number of exchange participants an organization has sponsored per category of exchange, a summary of the activities in which exchange visitors were engaged, and an evaluation of the program’s effectiveness. Program sponsors include government agencies, academic institutions, and private sector not-for-profit and for-profit entities. The estimated number of respondents annually is 1,460.

Annual reports are completed through the Student and Exchange Visitor Information System (SEVIS), printed and signed by a sponsor official, and sent to DOS by mail or fax. DOS said it is working with the Department of Homeland Security (DHS) to expand SEVIS functions and enable the collection of electronic signatures. Annual reports will be submitted to DOS electronically “as soon as the mechanism for doing so is approved and in place,” the agency said. DHS announced a delay in implementing SEVIS II in April 2010. Phase one, the creation of customer accounts and the migration of school and sponsor records, was planned to start in March 2010, and phase two, full operating capability, was planned to deploy in October. DHS said a final decision on the schedule has not been reached, but confirmed that SEVIS II will not be deployed this year.

Comments or requests for additional information may be sent to the offices listed in the OMB notice, which is available at http://edocket.access.gpo.gov/2010/pdf/2010-26381.pdf. For details on the SEVIS II delay, see http://www.ice.gov/sevis/sevisii/sevisii_update_032010.htm.

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5. USCIS Opens New Office in Holtsville, Long Island

U.S. Citizenship and Immigration Services (USCIS) recently announced the opening of a new full-service field office in Holtsville, Long Island, New York. The office has the capacity to serve approximately 400 residents of Nassau, Suffolk, and Queens Counties per day, including fingerprinting.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=22a20d1fd9bab210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. ABIL Global: India Changes Work-Related Visa Rules

In an effort to protect India’s lesser skilled workers and attract highly skilled foreign workers, the Indian Ministry of Home Affairs (MHA) has issued an order and released a new FAQ (frequently asked questions) document stating that employment visas are intended for foreigners desiring to come to India to work if the applicant is a highly skilled and/or qualified professional engaged or appointed by a company, organization, or industry undertaking in India on a contract or employment basis.

Employment visas will not be granted for positions for which qualified Indians are available, the FAQ states. Also, employment visas will not be granted for “routine, ordinary or secretarial/clerical jobs.” The foreign national must seek to visit India for employment in a company, firm, or organization registered in India or for employment in a foreign company, firm, or organization engaged in the “execution of some project in India.” Further, the FAQ states, the foreign national being sponsored for an employment visa in any sector should draw a salary above US $25,000 per year, with the exception of ethnic cooks, language teachers (other than English) and translators, and staff working for the “concerned Embassy/High Commission in India.”

The MHA also has announced the elimination of the prior maximum of 1% of the total workforce, or up to 20, for each Indian company that sponsors foreign workers.

The employment visa must be issued from the country of origin or country of domicile of the foreigner, provided the period of permanent residence of the applicant in that country is more than 2 years.

Documentation pertaining to the proposed employment, such as registration of the company under the Companies Act, proof of registration of the firm in the State Industries Department or the Export Promotion Council concerned, or any recognized promotional body in the field of industry and trade, will be reviewed to decide the category of visa that may be issued.

The name of the sponsoring employer or organization must be clearly stipulated in the visa sticker.

The following categories of foreign nationals are also eligible for employment visas provided they meet the basic conditions for an employment visa:

(i) Foreign nationals coming to India as consultants on a contract for whom the Indian company pays a fixed remuneration (this may not be in the form of a monthly salary).

(ii) Foreign artists engaged to conduct regular performances for the duration of an employment contract given by hotels, clubs, or other organizations.

(iii) Foreign nationals coming to India to take up employment as coaches of national or state-level teams or reputed sports clubs.

(iv) Foreign sportsmen who are given contracts for a specified period by Indian clubs or organizations.

(v) Self-employed foreign nationals coming to India for providing engineering, medical, accounting, legal or other such highly skilled services in their capacity as independent consultants, provided the provision of such services by foreign nationals is permitted under law.

(vi) Foreign language teachers and interpreters.

(vii) Foreign specialist chefs.

(viii) Foreign engineers or technicians coming to India to install and commission equipment, machines, or tools under the terms of a contract for the supply of such equipment, machines, or tools.

(ix) Foreign nationals deputed for providing technical support or services, or transfer of know-how or services, for which the Indian company pays fees or royalties to the foreign company.

Regarding the duration of the employment visa, the rules have different validity dates depending on the employment arrangement. These are summarized as follows:

(i) A foreign technician/expert coming to India under a bilateral agreement between the Indian government and the foreign government, or pursuant to a collaboration agreement that has been approved by the Indian government, may be granted a multiple employment visa for the duration of the agreement, or for a period of five years, whichever is less.

(ii) Highly skilled foreign personnel being employed in the IT software and IT-enabled sectors may receive a multiple entry employment visa with a validity of up to three years or for the term of assignment, whichever is less.

Applicants who are not covered under any of these two arrangements may obtain a multiple entry employment visa for up to two years or the term of assignment, whichever is less.

Finally, the rules provide for extensions beyond the initial visa validity period, up to a total period of five years from the date of issue of the initial employment visa, on a year-to-year basis, subject to the individual’s good conduct, production of necessary documents in support of continued employment, filing of income tax returns and to there being no adverse security inputs relating to the foreign national. The period of extension shall not exceed five years from the date of issue of the initial employment visa.

The FAQ, which contains additional details on business and work-related visas issued by India, is available at http://www.mha.nic.in/pdfs/work_visa_faq.pdf.

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7. ABIL Global: Canadian Regulatory Changes Will Affect Canadian Employers, Temporary Foreign Workers

Various changes to Canada’s Immigration and Refugee Protection Regulations will take effect on April 1, 2011, affecting both Canadian employers and their temporary foreign workers. These changes are intended to:

• Reduce the opportunity for exploitation of temporary foreign workers by employers and third-party agents;
• Ensure greater employer accountability mechanisms, including a denial of service provision, thereby encouraging greater adherence by employers to the terms and conditions of their job offers with respect to wages, working conditions and occupations; and
• Clarify that employment facilitated through the Temporary Foreign Worker Program is meant to be temporary in nature.

The changes include:

Rigorous assessment of the genuineness of the employment offer. The amendments establish specific factors to assess the genuineness of an employer’s offer of employment to a foreign worker both in Labour Market Opinion (LMO) cases and in LMO-exempt cases. These factors include:

• Whether the offer is made by an employer that is actively engaged in the business with respect to which the offer is made;
• Whether the offer is consistent with reasonable employment needs of the employer;
• Whether the terms of the offer are terms that the employer is reasonably able to fulfill; and
• The past compliance of the employer, or any person who recruited the foreign national for the employer, with the federal or provincial laws that regulate employment, or the recruiting of employees, in the province in which it is intended that the foreign national work.

Ban on employers for noncompliance with a previous LMO. The amendments will render an employer ineligible to seek a work permit on behalf of a foreign worker unless, during the period beginning two years before the initial request for an LMO is made to Service Canada or, in the case of an LMO-exempt work permit, beginning two years before the work permit application is received by Citizenship and Immigration Canada (CIC) or the Canada Border Services Agency (CBSA):

• The employer provided each of its foreign workers with wages, working conditions and employment consistent with the wages, working conditions and occupation set out in the employer’s offer of employment; or the failure to do so was justified.

Justifications include:

• A change in federal or provincial law;
• A change in the provisions of a collective agreement;
• The implementation of measures by the employer in response to a dramatic change in economic conditions that directly affected the employer, provided that the measures were not directed disproportionately at foreign nationals employed by the employer;
• An error in interpretation made in good faith by the employer with respect to its obligations to a foreign national, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error;
• An unintentional accounting or administrative error made by the employer, if the employer subsequently provided compensation or made sufficient attempts to do so to all foreign nationals who suffered a disadvantage as a result of the error; or
• Circumstances similar to those set out above.

The assessment is undertaken when a new LMO is requested or, in the case of an LMO-exempt work permit application, when the work permit application is received by CIC/CBSA. Employers must review all LMO applications to ensure compliance during the two-year period preceding April 2011. An internal immigration audit is recommended.

List of banned employers posted on CIC Web site. The amendments authorize CIC to maintain a list of banned employers on its Web site, listing the names and addresses of each employer and the date that the determination was made. Service Canada will not issue an LMO and CIC/CBSA will not issue a work permit for any employer on the list.

Four-year cap for most temporary foreign workers. The amendments provide for a cumulative four-year cap for most foreign workers. However, exemptions from the four-year cap exist in the following situations:

• The foreign worker intends to perform work that would create or maintain significant social, cultural or economic benefits or opportunities for Canadian citizens or permanent residents. Therefore, work permits based on LMO exemptions, such as significant benefit to Canada and intra-company transferees, along with other LMO exemptions, will be exempt from the four-year cap.
• The foreign worker intends to perform work pursuant to an international agreement between Canada and one or more countries. Work permits issued under international agreements such as the North American Free Trade Agreement, the General Agreement on Trade in Services, the Canada-Chile Free Trade Agreement, or the Peru Free Trade Agreement will be exempt from the four-year cap.
• A foreign worker who has reached the four-year cap is not necessarily required to leave Canada. However, the foreign worker would not be eligible for a work permit even under another category. He or she may be permitted to apply for status under a non-work category such as that of a visitor or student.

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8. Member News

Klasko, Rulon, Stock & Seltzer received the highest ranking (Tier 1) for the Immigration Law category in both New York and Philadelphia in the first-ever U.S. News and World Report “Best Law Firm” rankings. See http://bestlawfirms.usnews.com/. H. Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm) is a member of the Alliance of Business Immigration Lawyers.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) recently posted a new blog entry, “The Immigration Log In Our Eyes.” The blog is available at http://www.nationofimmigrators.com/?p=359.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) recently posted a new blog entry, “What Is Going On in Nevada With Immigration?” The blog is available at http://musingsonimmigration.blogspot.com/2010/10/what-is-going-on-in-nevada-with.html.

Mr. Kuck recently conducted a radio interview with Mr. Paparelli about the immigration system. The interview is available at http://www.radiosandysprings.com/podcasts/ImmigrationHourOct26.2010.mp3.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) will speak about the prospects for immigration reform after the mid-term elections at 1:30 p.m. on November 15, 2010, at the National Press Club in Washington, DC.

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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 Raises Many Fees, Adds New Fees – Among other things, USCIS is raising fees for most immigration benefits by a weighted average of 10 percent, establishing several new fees, and raising the premium processing service fee.

2. 2012 Diversity Visa Lottery Program Registration Begins in October – The Department of State strongly encourages applicants not to wait until the last week of the registration period to enter, because heavy demand may result in online delays and missing the deadline.

3. DOS Solicits Comments on Nonimmigrant Treaty Trader/Investor Application – The Department of State has submitted the Nonimmigrant Treaty Trader/Investor Application to the OMB for approval to extend its validity, and seeks public comments for up to 30 days from September 23, 2010.

4. FY 2011 Visa Numbers Available on October 1, 2010; DOS Updates China Reciprocity Schedule – Visa numbers once again are available for many categories as of October 1; the Department amended its visa reciprocity schedule for China to allow for 12-month multiple-entry visas for H visa applicants.

5. DOS Issues Travel Warning for Mexico – The Department has issued a travel warning for Mexico in response to the deteriorating security situation there; as of September 10, 2010, the Consulate General in Monterrey is a partially unaccompanied post.

6. ABIL Global: Repercussions of the Global Economic Crisis on Mexican Immigration Policies – Immigration authorities have become stricter in their adherence to a law that regulates the proportion of Mexican and foreign employees in a company legally established in Mexico.

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 Raises Many Fees, Adds New Fees

In a final rule effective November 23, 2010, U.S. Citizenship and Immigration Services (USCIS) is making changes to its fee structure. Applications or petitions mailed, postmarked, or otherwise filed on or after November 23, 2010, must include the new fees.

Among other things, USCIS is raising fees for most immigration benefits by a weighted average of 10 percent, establishing several new fees, and raising the premium processing service fee. An application to replace a green card will cost $365 instead of $290; an immigrant petition for alien worker will cost $580 instead of $475; and an application for employment authorization will cost $380 instead of $340.

The premium processing fee will increase from $1,000 to $1,225. There will be a new fee for a civil surgeon designation of $615, and a new fee of $6,230 for an application for a regional center designation under the EB-5 immigrant investor pilot program.

USCIS noted that most EB-5-related comments the agency received in response to the proposed rule acknowledged the need for a regional center designation fee. The commenters expressed support for the fee, USCIS said, while also noting the need for improvements in processing times, collaborative efforts, and regulatory development. USCIS said it “continues to strive for improved processing times, has committed to improved stakeholder communications with quarterly stakeholder meetings, and will pursue regulatory development when practical.”

Several commenters on the proposed rule expressed concern that USCIS would raise fees during a time when many employment-based adjustment of status filers are experiencing long waits for their visas. USCIS attributed these long waits to visa retrogression in oversubscribed categories, noting that some have attributed it to USCIS processing inefficiencies and questioned a fee hike in the face of such delays. Others have attributed the long waits to the mismanagement of the visa allocation and coordination process between USCIS and the Department of State (DOS), and noted that many numerically limited visa numbers have gone unused.

USCIS said the notion that processing inefficiencies contribute to the long wait for visas “appears unfounded,” citing an average processing time of four months for an Application to Register Permanent Residence or Adjust Status, Form I-485. “This timeframe meets the processing goal set forth in the 2008/2009 fee rule,” USCIS said, adding that “[s]ignificant improvements have also been made in the visa coordination process between DOS and USCIS.” USCIS said that it confers with DOS monthly on pending visa demand, workload capabilities, and forecasting immigration trends. For example, USCIS noted, if its analysis finds a period of low demand in a particular visa preference category, DOS is able to respond by advancing the priority dates rapidly to ensure that all allotted visas will be used in a particular fiscal year. “USCIS and DOS continue to consider ideas and options to further improve the visa coordination process between the two and reduce the occurrence of visa retrogression or future unused numbers,” USCIS said.

Some commenters also suggested that USCIS recapture unused visa numbers from recent years as a way to reduce the backlog of pending adjustment of status cases. By recapturing these numbers, they suggested, visa priority cut-off dates would advance, allowing for many new filings and thereby increasing USCIS revenue without a need to raise fees. USCIS noted, however, that the authority to recapture any unused visa numbers from previous years resides with Congress and is not available to USCIS as an administrative remedy. Moreover, increasing the number of filings concurrently increases the amount of work to be performed, thus consuming the fees generated. “Even if legally possible, this solution would not be practical,” USCIS said.

Due to the long wait for visa numbers in particular categories, several commenters disagreed with a fee hike because costs would rise for intending immigrants either seeking to maintain their status in the U.S. or receiving ongoing interim benefits while awaiting visa numbers. USCIS noted, however, that U.S. employers may not recoup the costs required to file for a nonimmigrant employee or his or her extension or change of status; thus, the costs are borne by the employer and not the intending immigrant seeking to maintain status. Furthermore, USCIS said, applicants for adjustment of status who request advance parole and employment authorization are exempt from payment of additional fees while their I-485s are pending.

USCIS said it acknowledges that employment-based I-485 filers who filed under the old fee structure, before August 18, 2007, must continue to pay fees associated with interim benefits. USCIS noted that it has no control over DOS’s allocation of visa numbers or the yearly visa numerical limits established by Congress, but said the agency is “sympathetic to those who have pending adjustment of status applications in categories experiencing extreme visa retrogression.” To alleviate the burden, USCIS initiated a policy in June 2008 of a two-year validity period on employment authorization documents for these affected individuals, “effectively reducing ongoing costs for the benefit by an estimated 50 percent.” USCIS said it is further adopting a policy whereby “those same affected individuals may receive an advance parole document with a two-year validity period to further alleviate their filing burdens. The number of filers affected by FY 2007 visa retrogression continues to decline as visa numbers are allocated.”

One commenter suggested the creation of a variable fee structure depending on the wait for a visa number. USCIS said this would be impractical.

A number of commenters requested that USCIS offer multi-year employment authorization documents (Forms I-765) and travel documents (Forms I-131). Commenters cited the financial burden of submitting multiple applications for both services while their adjustment of status cases are pending. Some commenters also mentioned the administrative burden created when trying to time the filing of the documents so as not to produce instances of overlapping validity.

USCIS said it “has no interest in artificially limiting the validity periods of these documents,” pointing out that in many instances, these validity periods are directly related to the length of the underlying status that created eligibility for the associated benefits. “For example, a permanent resident who remains outside the United States for more than one year may be questioned on his or her return based on the validity of his or her Permanent Resident Card, Form I-551,” USCIS noted. “If that individual applied for a reentry permit before departure from the foreign country, and the application is granted, then the one-year validity of the Form I-551 is extended to two years.” USCIS noted that the current two-year validity of the reentry permit matches this period. Issuing it for a longer validity period “could create confusion and result in some permanent residents remaining abroad for too long and potentially jeopardizing their status. The validity period of a travel document or EAD is generally linked to the validity period of the relating immigration status.”

The final rule, which contains a table showing the fee changes and additional details on how the new fees were calculated, is available at http://edocket.access.gpo.gov/2010/pdf/2010-23725.pdf. A related announcement, fact sheet, and Q&A are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=53173dc5cb93b210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD, http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5be73dc5cb93b210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD, and http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=67b73dc5cb93b210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD, respectively.

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2. 2012 Diversity Visa Lottery Program Registration Begins in October

The online registration period for the DV-2012 diversity visa lottery begins at 12 noon eastern time, Tuesday, October 5, 2010, and ends at 12 noon eastern time, Wednesday, November 3, 2010. The Department of State strongly encourages applicants not to wait until the last week of the registration period to enter, because heavy demand may result in online delays and missing the deadline.

For DV 2012, entrant notification will be through the Entry Status Check at http://www.dvlottery.state.gov. Entrants selected will receive further instructions in the mail, including information on fees connected with immigration to the U.S. The “Selection of Applicants” section in the instructions provides information about the DV timeframe and process.

The Department’s announcement notes that there have been instances of fraudulent Web sites posing as official U.S. government sites. Also, some companies posing as the U.S. government have sought money in order to “complete” lottery entry forms. “There is no charge to download and complete the Electronic Diversity Visa Entry Form. The Department of State notifies successful Diversity Visa applicants by letter, and NOT by e-mail,” the announcement notes.

The announcement, with links to the instructions and to DV-2010 and DV-2011 results, is available at http://travel.state.gov/visa/immigrants/types/types_1322.html. The instructions are available at http://travel.state.gov/visa/immigrants/types/types_1318.html.

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3. DOS Solicits Comments on Nonimmigrant Treaty Trader/Investor Application

The Department of State has submitted the Nonimmigrant Treaty Trader/Investor Application (DS-156E) to the Office of Management and Budget for approval to extend its validity, and seeks public comments for up to 30 days from September 23, 2010. Copies of the document may be obtained from Stefanie Claus, Office of Visa Services, U.S. Department of State, 2401 E Street, NW, L-603, Washington, DC 20522; telephone (202) 663-2910. Comments should be submitted by one of the methods set forth in the notice, which appears at http://edocket.access.gpo.gov/2010/pdf/2010-23811.pdf.
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4. FY 2011 Visa Numbers Available on October 1, 2010; DOS Updates China Reciprocity Schedule

The Department of State sent a memorandum to USCIS on September 15, 2010, noting that effective September 16, there would be no further authorizations of visa numbers for any family preference category, or for employment second, third, third “other workers,” fourth, and fourth “certain religious worker” cases for the remainder of fiscal year (FY) 2010. Numbers once again are available for all of these categories as of October 1, 2010, under the FY 2011 annual numerical limitation. The memo stated that USCIS could continue to process the cases received and that they would be held in the Visa Office’s “Pending Demand” file. “All eligible pending demand cases will be automatically authorized based on the FY-2011 cut-off dates which are announced.”

Also, the Department amended its visa reciprocity schedule for China to allow for 12-month multiple-entry visas for H visa applicants instead of the previous 3-month, 2-entry visa. The updated reciprocity schedule and guide for China is available at http://travel.state.gov/visa/fees/fees_4881.html?cid=3537.

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5. DOS Issues Travel Warning for Mexico

The Department of State issued a travel warning on September 10, 2010, to inform U.S. citizens traveling to and living in Mexico about the security situation there. Among other things, the status of authorized departure of family members of U.S. government personnel from U.S. Consulates in the northern Mexico border cities of Tijuana, Nogales, Ciudad Juarez, Nuevo Laredo, Monterrey, and Matamoros ended on September 10 following the expiration of the maximum 180-day period. Based on a security review in Monterrey following an August shooting in front of the American Foundation School in Monterrey and the high incidence of kidnappings in the Monterrey area, U.S. government personnel from the Consulate General have been advised that the immediate, practical, and reliable way to reduce the security risks for all children is to remove them from Monterrey. As of September 10, 2010, the Consulate General in Monterrey is a partially unaccompanied post, meaning no minor dependents of U.S. government employees are permitted to remain in the city. This travel warning supersedes the warning for Mexico dated August 27, 2010, to note the lifting of Authorized Departure status for U.S. Consulates along the U.S.-Mexico border.

The warning, which discusses many other details about the security situation in Mexico and along the border, is available athttp://travel.state.gov/travel/cis_pa_tw/tw/tw_4755.html.

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6. ABIL Global: Repercussions of the Global Economic Crisis on Mexican Immigration Policies

Due to Mexico’s close interconnection with the United States, the economic crisis has begun to have a significant and profound effect on the domestic economy in Mexico. There have been no specific changes in the immigration laws in Mexico thus far; however, immigration authorities have become stricter in their adherence to one immigration law in particular that regulates the proportion of Mexican and foreign employees in a company legally established in Mexico.

The number of foreign employees in a company in Mexico is regulated by the corresponding legal immigration guidelines. This restriction is established in Article 7 of the Federal Labor Law, which is also supported by Article 123(A) of the Mexican Constitution regarding the rights and obligations of employees. This legal disposition restricts the percentage of foreigners working in a company to a maximum of 10 percent of the total workforce to allow for greater job opportunities for Mexican personnel in areas such as industrial production and other business sectors. Under these terms, a company or establishment’s workers must be 90 percent Mexican.

Some important points to highlight include:

1. In the technician and professional categories, all workers must be Mexican, except when Mexican personnel with a particular specialization are not available. Under this scenario, foreigners may be authorized on a temporary basis in a proportion that does not exceed 10 percent of such specialists.
2. The supervisor and foreign workers must have a sole obligation to the Mexican workers in such areas of specialization. The purpose of this policy is to train Mexican personnel in areas in which they do not have expertise or knowledge. In this manner, the domestic trained labor force is expected to grow and to continue to become more specialized in coordination with the foreign labor force.
3. Medical doctors who provide their services to companies in Mexico must all be Mexican.
4. All directors, administrators, and general managers are exempt from inclusion in the total computation of the proportion of Mexican to foreign workers. This is because these positions are considered to be key positions and essential to the development of business for the company in Mexico.

Mexican immigration authorities are very particular about the application of this immigration policy, now more than ever. Currently, they allow no flexibility in the percentages mentioned in this article. The main purpose of this regulation is to protect the domestic labor force from being displaced in a disproportionate manner by the foreign work force, especially in these times of economic uncertainty.

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7. New Publications and Items of Interest

THOMAS enhancements. THOMAS has undergone its third major enhancement of 2010. The latest enhancements add a mobile-friendly homepage, integrate features from the Library of Congress and Law Library of Congress websites into THOMAS, and add a new portal to state legislature websites at http://thomas.loc.gov/home/state-legislatures.html, which displays a map with links to the legislative bodies for all 50 states; Washington, DC; and U.S. territories. THOMAS also includes the status of bills and resolutions in the U.S. Congress, summaries, and full text; activity in Congress; the Congressional Record; schedules and calendars; committee information; presidential nominations; treaties; government resources; and information for teachers. For more on THOMAS, see http://thomas.loc.gov/home/abt_thom.html.
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8. Member News

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) recently wrote a letter on employment-based immigration proposals that had been discussed in an editorial published in the New York Times on September 14, 2010. He noted that “[i]ncreasing the cost of entry through exorbitant user fees or auctions will dissuade American employers and talented foreign workers. It will only cause more jobs to be outsourced and more foreign workers to stay away.” The letter, published on September 15, is available at http://www.nytimes.com/2010/09/22/opinion/l22immig.html?_r=2&ref=opinion.

Mr. Paparelli also has posted several new blog entries: “Immigration Innocents and the Dream Act: An Open Letter to Glenn Beck,” available at http://www.nationofimmigrators.com/?p=354, and “Rethinking Immigration: It’s Always the Economy, Stupid!”, available at http://www.nationofimmigrators.com/?p=353.

Mark Ivener’s new article, “Lawyer, Know Thyself: Fundamental Tips for Building a Strong Brand and a Strong Practice,” has been published by the American Bar Association. The article is available at https://www.abil.com/articles/ABIL%20Articles%20-%20PRACTICE%20-%20Strong%20Brand%20%28Ivener%291.pdf.

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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 Implements H-1B, L-1 Fee Increases – Effective immediately, the provisions require an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010.

2. CBP Clarifies TN Extensions of Stay While Immigrant Petition Is Pending/Approved – U.S. Customs and Border Protection has clarified that certain Trade NAFTA (TN) applicants may be admitted and extend their stay while an immigrant petition is pending or approved.

3. Smartsoft Agrees To Pay Nearly $1 Million in Back Wages, Interest – Smartsoft agreed to pay 135 nonimmigrant workers after the Wage and Hour Division determined that the company violated the H-1B program’s rules.

4. State Dept. Introduces ESTA Fee for Visa Waiver Travelers – The total fee will be $14, with $4 to recover the cost of administering the Electronic System for Travel Authorization and $10 as mandated in the Travel Promotion Act of 2009.

5. DHS Expands List of Dependents of Foreign Officials Eligible for Work Authorization – The final rule expands the list of dependents eligible for employment authorization to include any individual who falls within a category designated by the Department of State as qualifying.

6. ABIL Global: UK Government Introduces Limits on Skilled Immigration – The new Coalition Government’s main immigration policy will mark the first-ever numerical limits on employment-related migration, which historically has been market-driven.

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

8. Recent News from ABIL Members – Recent News from ABIL Members

9. Government Agency Links – Government Agency Links

Details:

1. USCIS Implements H-1B, L-1 Fee Increases

On August 13, 2010, President Barack Obama signed into law provisions to increase certain H-1B and L-1 petition fees. Effective immediately, the provisions require an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after August 14, 2010. The increases will remain in effect through September 30, 2014.

The additional fees apply to petitioners who employ 50 or more employees in the U.S. with more than 50 percent of their employees in the U.S. in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status. Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

• initially to grant a worker nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15), or
• to obtain authorization for a worker having such status to change employers.

USCIS is revising the Petition for a Nonimmigrant Worker (Form I-129) and instructions to comply with the new law (Public Law 111-230). To facilitate implementation, USCIS recommends that all H-1B, L-1A, and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why the new fee does not apply. USCIS requests that petitioners state whether the fee is required in bold capital letters at the top of the cover letter. If USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the law. An RFE may be required even if such evidence is submitted, if questions remain.

The additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee, needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.

USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=27eac9514bb8a210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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2. CBP Clarifies TN Extensions of Stay While Immigrant Petition Is Pending/Approved

A 2008 letter just recently released from U.S. Customs and Border Protection has clarified that Trade NAFTA (TN) applicants may be admitted and extend their stay while an immigrant petition is pending or approved, provided that they have not filed for adjustment or an immigrant visa – i.e., had an immigrant visa interview – and do not intend to immigrate on this specific visit. Once a TN files an application for an immigrant visa or adjustment of status, the letter notes, the TN would no longer be eligible for admission or an extension of stay as a TN nonimmigrant.

This is consistent with a practice that has not always been followed. A 1996 letter sent by a legacy Immigration and Naturalization Service official stated that the fact that an TN applicant is the beneficiary of an approved I-140 petition is not by itself a reason to deny an application for adjustment, extension, or readmission, if the individual’s intent is to remain in the U.S. temporarily. Some CBP officers, however have not always followed that advice.

The recently released CBP letter was sent on April 21, 2008, from Paul M. Morris, Executive Director, CBP Admissibility and Passenger Programs, to Charles D. Herrington, Senior Assistant General Counsel, Micron Technology, Inc. The letter states that “the mere filing or approval of an immigrant petition does not automatically constitute intent on the part of the beneficiary to abandon his or her foreign residence. This would hold for a TN principal who may be riding on a spouse’s immigrant petition.”

The 2008 CBP letter is available at https://www.abil.com/articles/ABIL%20Report%20-%20TN.pdf.

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3. Smartsoft Agrees To Pay Nearly $1 Million in Back Wages, Interest

Smartsoft International Inc., a computer consulting company based in Suwanee, Georgia, has agreed to pay nearly $1 million in back wages and interest to 135 nonimmigrant workers temporarily employed by the company under the H-1B visa program, the Department of Labor (DOL) announced on August 17, 2010. The agency’s Office of the Solicitor reached the agreement following a determination by the Wage and Hour Division that the company violated the H-1B program’s rules. Smartsoft also has U.S. offices in Sunnyvale, California, and North Brunswick, New Jersey.

A Wage and Hour Division investigator determined that some employees were not paid any wages at the beginning of their employment, were paid on a part-time basis despite being hired under a full-time employment agreement, and were paid less than the prevailing wage applicable to the geographic locations where they performed their work.

The company contested the Wage and Hour Division’s conclusions and requested a formal hearing with the DOL’s Office of Administrative Law Judges. As part of the agreement, the company will drop any further challenges.

The DOL’s announcement is available at http://www.dol.gov/opa/media/press/whd/whd20101111.htm.

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4. State Dept. Introduces ESTA Fee for Visa Waiver Travelers

The Department of State released a cable to the field in August 2010 that provides information on implementation of the Travel Promotion Act of 2009 (TPA), signed into law on March 4, 2010, and fee collection for the Electronic System for Travel Authorization (ESTA). Under the TPA, fees collected from international travelers from Visa Waiver Program (VWP) countries, matched by private sector contributions, will fund the Corporation for Travel Promotion. The fees will be collected through the ESTA system, which the Department of Homeland Security (DHS) administers.

On August 6, 2010, the DHS announced an interim final rule that requires travelers from VWP countries to pay operational and travel promotion fees when applying for ESTA beginning September 8, 2010. The total fee will be $14, with $4 to recover the cost of administering the ESTA system and $10 as mandated in the TPA.

The announcement, which provides additional details, is available at http://travel.state.gov/pdf/Introduction%20of%20the%20ESTA%20fee%20for%20Visa%20Waiver%20Travelers%20-%20August2010.pdf.

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5. DHS Expands List of Dependents of Foreign Officials Eligible for Work Authorization

The Department of Homeland Security (DHS) published a final rule on August 10, 2010, amending its regulations governing the employment authorization for dependents of foreign officials classified as A-1, A-2, G-1, G-3, and G-4 nonimmigrants. The rule, effective August 9, 2010, expands the list of dependents eligible for employment authorization to include any individual who falls within a category designated by the Department of State (DOS) as qualifying.

U.S. Citizenship and Immigration Services (USCIS) will only issue employment authorization documents to those dependents of foreign officials who are recognized by DOS as qualifying. Qualifying dependents must fall within a bilateral work agreement or de facto arrangement, listed on DOS’s Web site at http://www.state.gov/m/dghr/flo/c24338.htm.

To apply for employment authorization documents, eligible dependents first must obtain an endorsement from DOS on an Interagency Record of Request, Form I-566. The individual must then file the I-566 along with an Application for Employment Authorization, Form I-765, with USCIS.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e9867236f9c5a210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. ABIL Global: UK Government Introduces Limits on Skilled Immigration

The United Kingdom (UK) announced on June 28, 2010, that it will introduce limits on the numbers of non-European Union (EU) migrants coming to the UK under both the highly skilled and the sponsored routes of the Points Based System (PBS). The new Coalition Government’s main immigration policy will mark the first-ever numerical limits on employment-related migration, which historically has been market-driven. The limits are a response to the levels of net migration to the UK, which have increased significantly since 2004 with the enlargement of the EU.

On July 19, 2010, the Government also introduced an interim limit, in effect until April 2011, aimed at reducing the number of certificates of sponsorship that each employer may assign to migrant workers under Tier 2 (General) and reducing the number of visas issued under the Tier 1 highly skilled category. Many employers, who had been allocated these certificates when they registered as licensed sponsors under the scheme, have had their allocation reduced significantly (in some cases to zero) and must now make requests for additional allocations of certificates, which the UK Border Agency states will be approved only “in exceptional circumstances.”

The interim cap is already the subject of a legal challenge. With those extending their status in the UK given priority within the limits, employers who have paid to be licensed sponsors and have taken on significant compliance duties are now left with uncertainty about whether they can sponsor new hires from outside the EU.

Permanent limits will be introduced in April 2011. The UK government is undertaking a consultation process on how the limits should be imposed and, in particular, whether this should be on a first-come, first-served basis and whether intracompany transferees and family members should be included in the overall limit. For the points-based highly skilled route, a system of pooling, under which the highest-scoring applicants are picked from the pool each month, is also being considered.

There are significant concerns among major UK business groups and companies that the limits will damage the UK’s reputation as a place to do business and its competitiveness in the global economy.

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7. New Publications and Items of Interest

2009 Yearbook of Immigration Statistics. This compendium of tables published by the Department of Homeland Security’s Office of Immigration Statistics provides data on foreign nationals who, during fiscal year 2009, were granted lawful permanent residence, were admitted into the United States on a temporary basis, applied for asylum or refugee status, or were naturalized. Also included are data on enforcement actions. The Yearbook is available at http://www.dhs.gov/xlibrary/assets/statistics/yearbook/2009/ois_yb_2009.pdf. A report on enforcement actions in 2009 is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/enforcement_ar_2009.pdf.
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8. Recent News from ABIL Members

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in the Chicago Sun-Times (August 22, 2010) regarding asylum cases denied if applicants unwillingly aided terrorist organizations, even if under threat of death: “Unfortunately, the federal government has a very broad definition of material support. Even giving a cup of water or bowl of rice under duress can be deemed to be material support.” Mr. Yale-Loehr noted that it is common for the government to appeal such cases when the victim wins at the immigration judge level. “They’ll tell you it’s on a case-by-case basis but…the government does appeal too often,” he said. “If someone is successful at the immigration judge level, it’s well-deserved.” Mr. Yale-Loehr was also quoted in a related editorial published on the same day in the Chicago Sun-Times.

Articles on a variety of business immigration law topics by Alliance of Business Immigration Lawyers (ABIL) members are available on ABIL’s Web site at https://www.abil.com/newsletters_articles.cfm.

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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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