Headlines:

1. Department of State Publishes Consular Fee Interim Rule, Reopens Comment Period – The Department received 1,797 comments in response to the proposed rule and has reopened the comment period for an additional 60 days, until August 27, 2010.

2. USCIS Issues Guidance to Employers on Documentation of Work Authorization for TPS Beneficiaries – The guidance notes, among other things, that if an employee presents a TPS-related EAD that is expired for completion of the I-9 verification process, the employer must accept it if it remains unexpired based on an auto-extension of the EAD by DHS.

3. Secretary of Labor Announces $78.4 Million for Farmworker Jobs Program – The program provides training and employment services to migrant and seasonal farmworkers.

4. U.S. Embassies, Consulates in China Temporarily Open on Saturdays – Growth in 2010 has been dramatic, with China’s 2010 visa load up 28 percent over the same period last year.

5. iCERT Glitches: DOL Responds – Until the problems are resolved, the Department of Labor advises anyone needing a PDF of an LCA that they cannot access to e-mail the LCA Help Desk.

6. ABIL Global: Update from Australia – Australia’s new Prime Minister, Julia Gillard, has signaled a major shift in immigration policy by declaring that she does not believe in a “big Australia.”

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. Department of State Publishes Consular Fee Interim Rule, Reopens Comment Period

In response to a previously published proposed rule and related supplementary notice, the Department of State received 1,797 comments and has reopened the comment period for an additional 60 days, until August 27, 2010. The interim final rule takes effect on July 13, 2010. Nonimmigrant visa fees, including fees for Machine-Readable Visas (MRVs) and Border Crossing Cards (BCCs), have been modified under a separate rule published in May 2010, and those modified fees are also reflected in the Schedule of Fees in the interim rule.

Among other fee changes:

• The Department is increasing the application fee for a passport book for an adult (age 16 and older) from $55 to $70, and increasing the passport book security surcharge from $20 to $40. The application fee for a passport book for a minor (under age 16) will remain at $40.
• Instead of a single fee for processing an immigrant visa, the Department has created fees depending on the category of visa. The application fee for an employment-based visa processed on the basis of an I-140 petition will be $720. The application fee for a family-based visa (immediate relative and preference) processed on the basis of an I-130, I-600, or I-800 petition will be $330. Other immigrant visa applications (including for diversity visa applicants) will have a fee of $305.
• The Department is increasing the immigrant visa security surcharge, which all applicants except those statutorily exempted must pay, from $45 to $74.

The interim final rule, which includes a long discussion of the many comments received, is available at http://edocket.access.gpo.gov/2010/pdf/2010-15622.pdf.

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2. USCIS Issues Guidance to Employers on Documentation of Work Authorization for TPS Beneficiaries

U.S. Citizenship and Immigration Services (USCIS) recently issued guidance on the documentation employers may accept and that temporary protected status (TPS) beneficiaries may present as evidence of employment eligibility.

The guidance notes that the expiration date on the card is usually the end of the TPS period for which the bearer last registered. When the Department of Homeland Security (DHS) extends a specific TPS country designation, it sometimes issues a Federal Register notice containing a temporary blanket automatic extension of expiring employment authorization documents (EADs) for TPS beneficiaries from that country to allow time for USCIS to issue new EADs with updated validity dates. The USCIS Web site and the Federal Register notice will describe this EAD automatic extension and will note the date when the auto-extension ends. The extension is typically for six months, but the time period may vary.

If an employee presents a TPS-related EAD that is expired for completion of the Form I-9 employment authorization verification process, the employer must accept it if it remains unexpired based on an auto-extension of the EAD by DHS as announced in a notice published in the Federal Register. The card must reasonably appear to be genuine and to relate to the employee presenting it to be acceptable.

The guidance includes an example of a valid TPS-related EAD and additional detailed instructions. It is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f876090684988210VgnVCM100000082ca60aRCRD&vgnextchannel=8a2f6d26d17df110VgnVCM1000004718190aRCRD.

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3. Secretary of Labor Announces $78.4 Million for Farmworker Jobs Program

On June 24, 2010, U.S. Secretary of Labor Hilda L. Solis announced $78,410,000 in grant funds through the National Farmworker Jobs Program. The program provides training and employment services to migrant and seasonal farmworkers. The Department of Labor said the program “is designed to counter the impact of chronic unemployment and underemployment experienced by migrant and seasonal farmworkers who depend primarily on agricultural labor jobs.”

“Farmworkers do so much for families and for the nation’s economy as a whole. These hard-working members of our community deserve our support,” said Secretary Solis. “Today’s grants are an opportunity to help these workers as they upgrade their skills to improve their chances of advancement in their current employment or seek opportunities in other industries.”

The National Farmworker Jobs Program provides funding to community-based organizations and public agencies that assist farmworkers and their families in attaining greater economic stability. In addition to skills training, the program provides support services that help farmworkers participate in training programs or retain their agriculture employment. Services provided to farmworkers under the program include skills assessments, job search assistance, basic education remediation, case management, and on-the-job training. In addition, the program provides services such as child care, health care, and transportation that help workers keep their current jobs or successfully complete training programs.

Of the 50 states, 48 each have one grantee. California has five grantees. There are no grantees in Alaska. National Farmworker Jobs Program grants are awarded every two years. The new grants are continuations of 2009 funding.

The announcement, which includes a full list of grantees by state and the amounts granted, is available at http://www.dol.gov/opa/media/press/eta/eta20100878.htm.

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4. U.S. Embassies, Consulates in China Temporarily Open on Saturdays

On June 18, 2010, the Department of State announced that the U.S. Embassy in Beijing, along with four U.S. consulates general across China, is opening on Saturdays “over the next few weeks” to accommodate thousands of Chinese travelers seeking visas to visit the U.S.

Trade, commerce, people-to-people exchanges, and tourism between China and the U.S. have grown dramatically over the past few years, the Department noted. In 2009, U.S. consulates in China issued more than 487,000 visas to Chinese travelers. Sixty-six percent were for business and tourism. Growth in 2010 has been even more dramatic, with China’s 2010 visa load up 28 percent over the same period last year.

The announcement is available at http://www.state.gov/r/pa/prs/ps/2010/06/143364.htm.

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5. iCERT Glitches: DOL Responds

The American Immigration Lawyers Association recently queried the Department of Labor about difficulties in using the iCERT system, which is causing certain labor condition application cases in “initiated” status not to display online. A common reported problem is receiving an inappropriate warning when entering a prevailing wage source date. The DOL said it is working to correct the problems. Until they are resolved, the DOL advises anyone needing a PDF of an LCA that they cannot access to e-mail the LCA Help Desk at [email protected].
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6. ABIL Global: Update from Australia

Australia’s new Prime Minister, Julia Gillard, has signaled a major shift in immigration policy by declaring that she does not believe in a “big Australia.”

Former Prime Minister Kevin Rudd was in favor of population growth, with his government predicting it to hit around 36 million by 2050, largely through immigration. Australia’s population grew by two percent last year, mainly through migration – faster than any other developed country.

Since her appointment, Ms. Gillard has said, “Australia should not hurtle down the track towards a big population. I don’t support the idea of a big Australia with arbitrary targets of, say, a 40 million-strong Australia or a 36 million-strong Australia. We need to stop, take a breath and develop policies for a sustainable Australia. I support a population that our environment, our water, our soil, our roads and freeways, our buses, our trains and our services can sustain.”

But Ms. Gillard says that does not mean putting a stop to immigration altogether. Herself a migrant, Ms. Gillard said she would hold together an immigration policy that was pro-business and highly skilled, saying, “I don’t want business to be held back because they couldn’t find the right workers. That’s why skilled migration is so important.”

A recent poll showed 72 percent of people supported a rise in Australia’s population, but 69 percent wanted it to remain below 30 million people.

Just a month before Ms. Gillard’s appointment as Prime Minister, the Australian government had announced a new skilled migration program to address Australia’s medium and long-term skill needs. At the same time, the government confirmed that employers would be able to continue to solve their skill shortages through employer-sponsored programs that would be given priority processing with state and territory governments and given a role in sponsoring skilled migrants to solve local skill shortages.

A new Skilled Occupations List (SOL) comes into effect on July 1, 2010, and provides for just 181 occupations, which is a significant decrease from the old SOL containing 408 occupations. The new SOL represents a more demand-driven approach towards the skilled migration program, emphasizing high-value skills that will assist in addressing Australia’s labor market shortages. Under the old SOL, it was possible for a Ph.D. in environmental science from Harvard to miss out while a cook or hairdresser with low English skills who had completed a short technical course in Australia was able to proceed directly to permanent residence.

Occupations on the new SOL include doctors, nurses, dentists, accountants, engineers, IT professionals, and teachers (except primary school teachers), along with selected highly skilled trades, including electricians, carpenters, and motor mechanics.

By contrast, the demand-driven employer-sponsored temporary residence program allows businesses to sponsor over 620 managerial, professional, associate professional, and trade occupations. A key requirement for approval as a sponsor is that the business can demonstrate that it has met the training benchmark of spending at least one percent of gross payroll on training or upskilling its Australian workforce. Employers in regional Australia are able to sponsor not only these occupations but dozens of other occupations by entering into a Labour Agreement with the Australian government. For continued access to the program, a regional business must provide six monthly reports on efforts to recruit and train locals.

Employers can also nominate foreign workers for permanent residence in 430 occupations. A nominee must meet any of the following three criteria: (a) be paid in excess of A$165,000 p.a.; (b) be working in Australia for at least two years on one of a select range of temporary visas, including at least one with the nominating employer; or (c) have their skills or qualifications assessed by an approved assessing authority and have at least three years of relevant industry experience. Fully documented applications can result in permanent residence approvals in just two months.

By comparison with many other developed economies, Australia already shows signs of recovery from the global financial crisis. The government is keen to ensure that skills are readily available to facilitate a full recovery as well as deal with the looming issues that will flow from Australia’s aging population. To this end, newly elected Prime Minister Gillard has suggested that the government could pursue different migration policies for different parts of the country – the clearest indication yet that the skill needs of employers will be the driver of any new migration program.

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7. New Publications and Items of Interest

Characteristics of H-1B specialty occupation workers. U.S. Citizenship and Immigration Services has released “Characteristics of H-1B Specialty Occupation Workers” for fiscal year (FY) 2009. Highlights of the report include:

• The number of H-1B petitions filed decreased 15 percent from 288,764 in FY 2008 to 246,647 in FY 2009.
• The number of H-1B petitions approved decreased 22 percent from 276,252 in FY 2008 to 214,271 in FY 2009.
• Approximately 48 percent of all H-1B petitions approved in FY 2009 were for workers born in India.
• Two-thirds of H-1B petitions approved in FY 2009 were for workers between the ages of 25 and 34.
• Forty-one percent of H-1B petitions approved in FY 2009 were for workers with a bachelor’s degree, 40 percent had a master’s degree, 13 percent had a doctorate, and 6 percent were for workers with a professional degree.
• About 41 percent of H-1B petitions approved in FY 2009 were for workers in computer-related occupations.
• The median salary of beneficiaries of approved petitions increased to $64,000 in FY 2009, which was $4,000 more than in FY 2008.

The report is available at http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/H-1B/h1b-fy-09-characteristics.pdf.

Guide to InfoPass. InfoPass is a free online appointment-scheduling service of U.S. Citizenship and Immigration Services (USCIS). The agency has released a guide with tips on using the service. The guide is available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=f183bd85ef149210VgnVCM100000082ca60aRCRD&vgnextchannel=f183bd85ef149210VgnVCM100000082ca60aRCRD.

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8. Recent News From ABIL Members

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) will be awarded the American Immigration Lawyers Association’s (AILA) Edith Lowenstein Award for advancing the practice of immigration law on July 3, 2010 at AILA’s annual conference. Additional information on the 2010 awards is available at http://www.aila.org/content/default.aspx?docid=32427.

Mr. Paparelli recently argued on his blog that investor visa categories must be expanded. Mr. Paparelli noted, among other things, that “statutory and bureaucratic impediments to investment have produced all too predictable results.” He suggested that Congress consider more enticing, user-friendly investor visa categories. The blog is available at http://www.nationofimmigrators.com/?p=336.

ABIL and ABIL Global speakers/presenters at the upcoming 2010 AILA annual conference include:

• Kehrela Hodkinson, who will speak on a panel on “Immigrant Waivers Around the Globe”
• Mark Ivener, who will speak on “Marketing for Your Firm”
• Charles Kuck, who will speak on “Media Policy or Media Frenzy? The Keys to Media Advocacy
• Sharon Mehlman, who will moderate the USCIS open forum
• Cyrus Mehta, who will be discussion leader of the “Pro Bono 101” panel and moderate a meeting with the Hon. Robert A. Katzmann of the Second Circuit, who will receive the Michael Maggio Memorial Pro Bono Award, and AILA pro bono advocates
• Mr. Paparelli, who will speak on “Setting Up Immigration Policies and Processes for Corporate Clients”
• William Z. Reich, who will speak on border processing of TN and L-1 applications

Steve Clark (bio: https://www.abil.com/lawyers/lawyers-clark.cfm) chaired a CLE for the Boston Bar Association on Corporate Reorganization and Immigration on May 18, 2010. The panel included a presentation on I-9 and E-verify issues by ABIL President Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm). Other members of ABIL firms (e.g., Chin and Curtis) discussed the role of counsel and written immigration policies in the reorganization process.

Mr. Clark will deliver a presentation on “Post-Filing Issues in PERM Labor Certifications” at AILA’s National Conference on July 1, 2010, in National Harbor, Maryland.

Steve Trow (bio: https://www.abil.com/lawyers/lawyers-trow.cfm) presented on “U.S. Immigration and Citizenship Planning for High Net Worth Clients” at the Canadian national conference of the Society of Trust and Estate Practitioners in Toronto on June 7. His presentation included U.S. visa planning for investors and entrepreneurs, immigration strategies in relation to the U.S. exit tax, identifying clients who are not aware that they are U.S. citizens, and terminating U.S. citizenship by expatriation.

Mr. Trow also presented on “Immigration and Citizenship Planning for U.S. Citizens and Long Term Residents Who Expatriate” at a panel discussion hosted by the International Tax Committee of the District of Columbia Bar Association on June 22. The panel included four attorneys from the Internal Revenue Service who provided guidance on taxation of expatriates under Section 877A of the Internal Revenue Code.

Steve Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) will deliver a presentation on appeals to the USCIS’ Administrative Appeals Office at AILA’s National Conference on July 2, 2010, in National Harbor, Maryland.

Mr. Yale-Loehr co-authored an article with Mr. Paparelli entitled “Investing in America Through the E-2 and EB-5 Visa Categories” in the June 22, 2010, issue of the New York Law Journal.

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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 Revises Employment Authorization Document – The EAD now includes a machine-readable zone on the back of the card.

2. State Dept. Raises Consular Fees for Nonimmigrant Visas and BCCs – The interim final rule, effective June 4, 2010, also reopens the comment period on the raised fees for an additional 60 days.

3. DHS Eliminates Paper Arrival/Departure Form for VWP Participants – Automated processing for U.S. airports will be activated on a rolling basis over the next several months.

4. State Dept. Updates Student and Exchange Visitor Visa Guidance – Visa appointments for students and exchange visitors should be provided on a priority basis, and admission to a lesser?known academic institution, a community college, or an English language program is not in itself a reason for refusal.

5. Not-So-Good Vibrations? USCIS Implements Business Verification Program – VIBE (Verification Initiative for Business Enterprises) is intended to provide USCIS with an alternative means of verifying the financial viability of companies petitioning to employ foreign workers.

6. ABIL Global: Update From Germany/Europe – The EU Commission wants to introduce a simplified, accelerated, and EU-standard admission process for persons who have special professional qualifications, an employment contract with a company based in the EU, and earnings at least triple the national minimum wage.

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 Revises Employment Authorization Document

U.S. Citizenship and Immigration Services (USCIS) announced on May 25, 2010, that it has revised the Employment Authorization Document (EAD) (Form I-766) to incorporate the addition of a machine-readable zone on the back of the card.

USCIS began issuing the revised EADs on May 11, 2010. USCIS also removed the two-dimensional bar code on the back of the card and moved the informational box of text to just beneath the magnetic stripe on the card. The revised card retains all of its existing security features.

This follows USCIS’s announcement in early May that it is replacing Permanent Resident Cards (green cards) with a redesigned card that incorporates new security features. The agency is replacing green cards already in circulation as individuals apply for renewal or replacement.

USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=12f0e37359fc8210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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2. State Dept. Raises Consular Fees for Nonimmigrant Visas and BCCs

The Department of State has published an interim final rule, effective June 4, 2010, that raises from $131 to $140 the fee charged for processing an application for most non-petition-based nonimmigrant visas (Machine-Readable Visas or MRVs) and adult Border Crossing Cards (BCCs). The rule also provides new tiers of the application fee for certain categories of petition-based nonimmigrant visas and treaty trader and investor visas (all of which are also MRVs). Finally, the rule increases the $13 BCC fee charged to Mexican citizen minors who apply in Mexico, and whose parent or guardian already has a BCC or is applying for one, by raising that fee to $14 by virtue of a congressionally mandated surcharge that went into effect in 2009.

The rule reopens the comment period on these fees for an additional 60 days. Written comments must be received by July 19, 2010. The Department will consider any further comments, and whether to make changes to the rule in response to them, before publishing a final rule.

The interim final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-12125.pdf.

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3. DHS Eliminates Paper Arrival/Departure Form for VWP Participants

On May 20, 2010, the Department of Homeland Security (DHS) announced the elimination of the paper arrival/departure form (Form I-94W) for authorized travelers from Visa Waiver Program (VWP) countries. Following a seven-month pilot program on Air New Zealand flights from Auckland to Los Angeles International Airport, the use of paper I-94W forms will be eliminated for VWP travelers with an approved Electronic System for Travel Authorization (ESTA) arriving in the U.S. at all airports by the end of this summer. U.S. Customs and Border Protection (CBP) will activate automated processing for U.S. airports on a rolling basis over the next several months.

Applying for an ESTA became mandatory on January 12, 2009, for all nationals of VWP countries before boarding a carrier to travel by air or sea to the U.S. This requirement does not affect U.S. citizens returning from overseas or citizens of VWP countries traveling on a valid U.S. visa.

CBP recommends that VWP travelers submit ESTA applications as soon as they begin making travel plans. ESTA applications may be submitted at any time before travel. ESTAs are valid for two years or until the applicant’s passport expires. CBP has received more than 19 million ESTA applications from citizens of VWP countries.

The DHS announcement is available at http://www.dhs.gov/ynews/releases/pr_1274366942074.shtm.

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4. State Dept. Updates Student and Exchange Visitor Visa Guidance

The Department of State has released a cable updating guidance to the field for student and exchange visitor visa applications. The cable reminds posts that visa appointments for students and exchange visitors should be provided on a priority basis. Admission to a lesser?known academic institution, a community college, or an English language program is not in itself a reason for refusal, the cable notes, but all applicants should be able to explain their school choice and educational plan. “Which school a student chose is not nearly as important as why he/she chose it. ”

The cable urges posts to report suspect schools. The cable also notes that Summer Work and Travel Program participants should return from their programs in time for the beginning of fall classes, even though the Department of Homeland Security allows them a 30?day grace period before they have to leave the U.S. The cable also provides clarification on flight training, study incidental to visits for pleasure, and the Student and Exchange Visitor Information System (SEVIS).

The cable also notes that the Bureau of Consular Affairs continues to receive complaints that some consular officers are unreceptive to applications from prospective community college students. This is at odds with Consular Affairs policy, the cable notes.

The cable is available at http://travel.state.gov/pdf/ExchangeVisitorVisaUpdate-April2010.pdf.

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5. Not-So-Good Vibrations? USCIS Implements Business Verification Program

U.S. Citizenship and Immigration Services’ (USCIS) Office of Public Engagement held an information-sharing session on May 27, 2010, in Washington, DC, on a Web-based tool provided under a USCIS contract with Dun & Bradstreet, Inc., that the agency said “will help bring uniformity and consistency to the processing of employment-based immigrant and nonimmigrant petitions.” During the session, Service Center Operations staff provided a presentation of the “VIBE” program, which is being implemented this year at Service Centers.

VIBE (Verification Initiative for Business Enterprises) is intended to provide USCIS with an alternative means of verifying the financial viability of companies petitioning to employ foreign workers, along with other information about the company, such as the type of business and number of employees. USCIS announced in September 2009 that the contract had been awarded to Dun & Bradstreet for $35.5 million. A USCIS synopsis issued in April 2009 notes that:

…the Government requires licensing terms that allow the information provided to be retained in adjudicator files in perpetuity. Further, this information may be viewed and used by other Government agencies for legal proceedings, such as court hearings or similar administrative hearing activities related to granting or denying immigration benefits. It has also been determined through market research that industry does not provide warranty terms regarding the accuracy of information provided. The Government may potentially use the information in a court of law, as such, it must be supportable.

The award notice is available at https://www.fbo.gov/index?s=opportunity&mode=form&tab=core&id=43fee0e75bdb345ad3010794271abd2b&_cview=1. A related letter from USCIS Director Alejandro Mayorkas to Sen. Charles Grassley is available at http://www.nationofimmigrators.com/wp-content/uploads/2009/12/Mayorkas%20letter%20to%20Grassley%20re%20H-1B%20visa%20fraud.pdf. A blog commentary on the VIBE program is available at http://blogs.ilw.com/angelopaparelli/2009/12/bad-bad-bad-immigration-vibrations-from-uscis.html.

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6. ABIL Global: Update From Germany/Europe

German residence and work permit regulations are a genuinely complex matter. Therefore, regulations have to be carefully observed when conducting international transfers. Even if the German labor market is basically still affected by the so-called ban on recruitment (i.e., the categorical ban on the recruitment of foreign employees), in practice foreign workers can be employed under certain circumstances.

In particular, the employment of highly qualified staff is facilitated in numerous ways. Nevertheless, there is a considerable accumulated need against the background of intensified global competition for the most qualified labor. Therefore, for example, the earnings level for executives and the highly skilled, which has been 86.400 € per year (until December 31, 2008) and presently amounts to 66.000 € per year (as of January 1, 2010), should be reduced further to enable medium-sized companies to employ such labor to a larger extent. There is also hope because of the intended omission of the examination of the labor market for engineers from the new EU member states.

Because Germany had elections in September 2009 resulting in a new coalition government between the Christian Democrats (CDU) and the Free Democratic Party (FDP), further reforms or amendments of the existing laws on a larger scale are unlikely in the short- to midterm. Further developments remain to be seen. In the meantime, the following excerpt from the coalition agreement may give a hint of the route the government is likely to take:

We want to increase the attractiveness of Germany for highly qualified staff and steer immigration to Germany. Administrative barriers must be reduced for qualified staff. Access for highly qualified foreigners and foreign experts must be adjusted to the requirements of the German labor market and structured according to coherent, clear, transparent, and weighted criteria based on need, qualification, and integration potential. In addition, we plan to review the regulations on self-employment, jobs for students with a German university degree, jobs for artists, athletes, and seasonal workers; and to strive for simplification. [Translated, edited.]

The same applies at the European Union (EU) level, where the EU “Blue Card,” which had been put up for discussion in 2007, was recently adopted in May 2009 (Council Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment; May 25, 2009). The EU Commission, with particular emphasis on work and residence permits for highly qualified employees from third countries (non-EU), intends to increase the competitiveness of the European economy via the Blue Card. The Blue Card is expected to attract experts to Europe instead of the U.S., Australia, or Canada. According to an analysis by the EU, the latter have been the preferred work countries until now.

The EU Commission wants to introduce a simplified, accelerated, and EU-standard admission process for persons who have special professional qualifications, an employment contract with a company based in the EU, and earnings at least triple the national minimum wage. By means of the Blue Card, highly qualified staff will be granted a residence and work permit that includes special rights; e.g., if accompanied by family members. The directive is intended to encourage further mobility within the EU of highly qualified individuals. It acknowledges labor shortages and so its provisions are intended to:

foster admission and mobility — for the purposes of highly qualified employment — of third-country nationals for stays of more than three months, in order to make the [EU] Community more attractive to such workers from around the world and sustain its competitiveness and economic growth. To reach these goals, it is necessary to facilitate the admission of highly qualified workers and their families by establishing a fast-track admission procedure and by granting them equal social and economic rights as nationals of the host Member State in a number of areas. It is also necessary to take into account the priorities, labor market needs and reception capacities of the Member States.

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7. New Publications and Items of Interest

Dr. Sunil Mithas and Dr. Henry C. Lucas, Jr., professors at the University of Maryland, have authored a study published by the Institute for Operations Research and the Management Sciences, “Are Foreign IT Workers Cheaper? U.S. Visa Policies and Compensation of Information Technology Professionals.” The study finds that foreign IT professionals (those without U.S. citizenship and those without H-1B or other work visas) actually earn a salary premium when compared to U.S. citizen IT professionals when controlling for human capital attributes. The article is available from http://www.informs.org/.

The Department of Labor has released a new online advisor to help employers and others understand how to comply with requirements under the H-1B visa program. The advisor describes the program’s standards and provides detailed information about employers’ and workers’ rights and responsibilities. It outlines notification requirements, monetary issues, worksite issues, recordkeeping duties, worker protections, and enforcement issues. The advisor focuses solely on compliance with the requirements enforced by the Department’s Wage and Hour Division. It does not review the process for participating in the program or for invoking H-1B visa portability.

The Department’s announcement is available at http://www.dol.gov/opa/media/press/asp/oasp20100563.htm. The advisor is available at http://www.dol.gov/elaws/h1b.htm.

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8. Recent News From ABIL Members

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) was quoted in the May 28, 2010, edition of the New York Times on E-2 visas. The article concerns Dean and Laura Franks, a British couple who ran a Maine eatery for nine years before being forced to leave the U.S. because their E-2 visa was not renewed. Calling such cases “the forgotten story of immigration,” Mr. Paparelli noted that “[t]he headlines deal with Arizona and border crossings, but these are real people too. This is what happens when you play by the rules.” For more, see http://www.nytimes.com/2010/05/30/us/30visas.html.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) recently discussed the origins of the EB-5 immigrant investor program; the importance of EB-5 regional centers; and the ambiguities, complexities, challenges, and opportunities of the program. The LexisNexis podcast is available at http://www.lexisnexis.com/Community/emergingissues/blogs/podcasts2/archive/2010/05/20/LexisNexis_AE00_-Emerging-Issues-Law-Community-Podcast-featuring-Dan-Kowalski-and-Stephen-Yale_2D00_Loehr-on-the-EB_2D00_5-Investor-Visa-Program.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. USCIS Conducts Comprehensive Policy Review, Holds Session on RFEs – USCIS has launched a comprehensive effort to review all agency policies with the participation of both its workforce and the public.

2. Controversial New Arizona Statute Signed Into Law – The governor of Arizona signed a law that directs local police to make immigration status determinations and makes it a misdemeanor to lack proper immigration documents.

3. DOS Requests Comments on SEVIS – The SEVIS forms have been revised to clarify language used and remove unnecessary data collection.

4. ICE Plans More Visa Security Units – The program is intended to maximize the visa process as a counterterrorism tool.

5. USCIS Advises Foreign Nationals Whose Work Permits Expire Before CNMI-Only Visa Categories Are Available – Certain foreign nationals without umbrella permits whose work permits expire before new visa categories are available to them may be eligible for an interim status.

6. ABIL Global: The Scope of Immigration Laws for International Investors in Brazil – The entrepreneur has to convince the Brazilian authorities that his or her work will bring new jobs to Brazilians and develop the Brazilian market.

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 Conducts Comprehensive Policy Review, Holds Session on RFEs

U.S. Citizenship and Immigration Services (USCIS) has launched a comprehensive effort to review all agency policies with the participation of both its workforce and the public. USCIS invited outside stakeholders to identify their highest priorities for the policy review through a two-week survey that ended on April 29, 2010. USCIS said it will publish a summary of the results later this spring.

Throughout the policy review, USCIS said it will continue to seek feedback from its workforce and external stakeholders to ensure that the resulting policies are “informed, responsive, and effective.”

As part of USCIS’s overall efforts to review agency policies, on April 12, 2010, USCIS Director Alejandro Mayorkas and the head of the Service Center Operations Directorate, Donald Neufeld, held a listening session for U.S. national stakeholders to review and revise the Request for Evidence (RFE) templates. This was the first time that the USCIS held a dialogue with stakeholders to obtain their feedback on how to improve the RFE process and to clarify any concerns that have arisen due to recent changes, the Alliance of Business Immigration Lawyers noted. The reviewed types included the O (extraordinary ability or expertise), P (athletes and entertainers), Q (cultural exchange), and EB-1 (first preference extraordinary ability) visa categories.

At the session, a number of people asked about a January 8, 2010, guidance memorandum by Mr. Neufeld, and expressed unease about the number of RFEs that are being issued on cases that used to be approved. Mr. Mayorkas and Mr. Neufeld replied that they will offer more opportunities for the public to understand the adjudication process while taking into account the needs of employers, attorneys, and immigrants.

USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d0c77dfffc108210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=66681f7af1208210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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2. Controversial New Arizona Statute Signed Into Law

On April 23, 2010, Governor Jan Brewer of Arizona signed a tough new measure (S.B. 1070) into law that directs local police to make immigration status determinations if there is a “reasonable suspicion” a person may be undocumented, and makes it a misdemeanor to lack proper immigration documents. The law is scheduled to take effect by August.

Gov. Brewer said the new law “represents another tool for our state to use as we work to solve a crisis we did not create and the federal government has refused to fix.” Sen. John McCain (R-Ariz.), who is campaigning in a primary against a challenger who has made immigration a main issue, came out in favor of the law only hours before its passage by the state Senate.

Controversy and protests have swirled around the new law. Those opposed are especially concerned about racial and ethnic profiling and the effects of criminalizing a person’s failure to carry immigration documents. “A lot of U.S. citizens are going to be swept up in the application of this law for something as simple as having an accent and leaving their wallet at home,” warned Alessandra Soler Meetze, president of the American Civil Liberties Union (ACLU) of Arizona. The ACLU plans to sue to block the legislation.

Moments after Gov. Brewer signed the law, the Board of Governors of the American Immigration Lawyers Association called for a boycott of Arizona, instructing its Executive Committee to move the Association’s fall 2010 conference, previously scheduled for Arizona, to another state. AILA President Bernie Wolfsdorf explained, “We cannot in good conscience spend association dollars in a state that dehumanizes the people we represent and fight for. What Governor Brewer has done by signing this bill into law is to validate all of the irrational fears by people who are not willing to acknowledge the economic and cultural benefits of immigration to our country. If Arizonans are serious about ending illegal immigration, they should be the first in line at the United States Capitol to urge Congress to the do the right thing and pass comprehensive immigration reform.”

AILA stated that in addition to being unconstitutional under the Supremacy Clause of the U.S. Constitution, the law effectively authorizes police to engage in racial profiling and permits citizens to sue any state or local agency if they believe it is failing to enforce the law. “On top of making laws that will be struck down in the courts, it will hurt business and even bankrupt local municipalities. We’ve seen this happen in other localities trying to be tough on immigration but in the end hurting their own economies,” Mr. Wolfsdorf said. AILA cited the example of Tulsa, Oklahoma, where two months after a harsh 2008 law went into effect, construction work was being left unfinished and local businesses were losing customers. AILA also noted that such laws add enforcement of federal immigration law to already overburdened local police departments. Police unions backed the new law, but the state police chief’s association opposed the bill, noting that it could damage trust in immigrant communities among potential witnesses.

PolitiFact recently published a fact-checking article examining the issue of racial or ethnic profiling with respect to the new law. The article is available at http://www.politifact.com/truth-o-meter/statements/2010/apr/28/alfredo-gutierrez/arizona-immigration-law-allows-police-question-any/.

The text of the new Arizona law is at http://www.azleg.gov/legtext/49leg/2r/bills/sb1070h.pdf. A summary of the law is at http://www.azleg.gov/legtext/49leg/2r/summary/h.sb1070_04-15-10_houseengrossed.doc.htm.

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3. DOS Requests Comments on SEVIS

The Department of State has issued a request for comments on the recording, reporting, and data collection requirements under the Student and Exchange Visitor Information System (SEVIS). SEVIS is used to monitor foreign students and exchange students in the United States. The forms have been revised to clarify language used and remove unnecessary data collection. Comments will be accepted up to 60 days from April 22, 2010, and may be submitted by e-mail, mail, or online to the location named in the notice, which is available at http://edocket.access.gpo.gov/2010/pdf/2010-9325.pdf.
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4. ICE Plans More Visa Security Units

U.S. Immigration and Customs Enforcement (ICE) recently announced that the agency plans to expand its visa security units from 12 countries to 16 this year and an additional country next year. ICE works with the Department of State to identify high-risk posts to receive visa security units. The program, intended to maximize the visa process as a counterterrorism tool, assigns experienced special agents to visa security units overseas to review visa applications, initiate investigations, and provide advice and training to consular officers.

The list of countries to be added has not been announced, but the Department of Homeland Security separately has identified 14 nations whose citizens underwent mandatory secondary screening for a temporary period after the Christmas Day bombing attempt: Afghanistan, Algeria, Cuba, Iran, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia, Sudan, Syria, and Yemen. Currently, ICE has visa security units in Canada, Egypt, Germany, Hong Kong, Indonesia, Jordan, Morocco, Pakistan, Philippines, Saudi Arabia, United Arab Emirates, and Venezuela.

Sen. John Cornyn (R-Tex.) and Rep. Lamar Smith (R-Tex.) introduced companion bills on March 4, 2010, in the House and Senate to fund 16 visa security units in high-risk nations, including Algeria, Colombia, India, Iraq, Jerusalem, Kuala Lumpur, Kuwait, Lebanon, Mexico, Nigeria, South Africa, Syria, Tel Aviv, Turkey, United Kingdom, and Yemen.

The Department of Homeland Security’s Office of Inspector General released a report in 2008 on the visa security unit program. The report is available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_08-79_Jul08.pdf.

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5. USCIS Advises Foreign Nationals Whose Work Permits Expire Before CNMI-Only Visa Categories Are Available

U.S. Citizenship and Immigration Services (USCIS) announced on April 21, 2010, that it will grant parole-in-place status to certain foreign nationals in the Commonwealth of the Northern Mariana Islands (CNMI). Foreign nationals without umbrella permits whose work permits expire before new visa categories are available to them under federal immigration laws may be eligible for this interim status.

Certain employers and their foreign national employees did not apply for umbrella permits covering the two-year transition period to federal immigration law. They may have planned to apply for CNMI-only transitional worker visas immediately after the transition period began in November 2009. However, a court ruling that month stopped this nonimmigrant category from being available. As a result, some foreign nationals face losing their legal immigration status because of a gap between the expiration of their current CNMI work permit and the availability of the new “CNMI-Only Transitional Worker” status.

Certain foreign nationals with CNMI investor permits may also face a gap between the expiration date of their CNMI investor permit and the availability of the “CNMI-Only E-2 Investor” status.

Parole-in-place would give affected foreign nationals authorization under federal immigration law to remain in the CNMI and permit continued employment authorization until the CNMI-only transitional worker program and the CNMI investor status are implemented.

USCIS’s announcement includes details about how and where to apply for parole-in-place and what documents to submit. The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=72aaf95c93228210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. ABIL Global: The Scope of Immigration Laws for International Investors in Brazil

From the moment we retrace a historical review of immigration’s legislative structure for investors in Brazil, we perceive that in the last 11 years the Entrepreneurs’ Visa had three different normative resolutions with their respective minimum investment. Normative Resolution N. 28, from November 25, 1998, originally defines that the foreign investment has to be US$ 200,000.

On October 6, 2004, the Brazilian legislature altered the requirements and modified this resolution. The new Normative Resolution, N. 60, established the foreign investment as US$ 50,000.

Recently, a new resolution, Normative Resolution N. 84, was established in February 10, 2009, with a minimum investment of R$ 150,000 (about US$ 80,000). This new resolution includes more detailed procedures related to the current and sustainable Brazilian economy.

In both cases, an absorption plan of Brazilian manpower must be presented. In addition to this requirement, the sponsor of the visa is always the Brazilian company of which the foreign national is partner.

The Brazilian company must open a Brazilian bank (in Reais) account in order to receive the foreign investment. The entrepreneur needs to send the money in his or her own name (individual) for the bank account of the Brazilian company. It is not mandatory that all the money be invested at the same time, but the money must be registered with the Brazilian Central Bank. To certify this investment, the articles of Incorporation must include a clause stating that the foreign money is integrated into the Brazilian company.

Subsequent to the investment, the entrepreneurs must obtain a conditional permanent visa, valid for three years. During this three-year period, the foreign national may only provide services for the Brazilian company that sponsored the visa. This condition is written in his or her Brazilian ID Card.

The creation of employment and revenue in Brazil is the most important condition for obtaining this visa. Related to that, the absorption plan of Brazilian manpower must be executed in the first year of the Brazilian company after the arrival of the entrepreneur. The company may hire and/or employ Brazilian manpower other than its stated direct absorption plan of the investor program, but it is mandatory to fulfill the original numbers.

For the investor program, it is mandatory to present the number of employees and posts, the salaries that will be paid, and the amount of investment in the capacity and qualifications of the Brazilian employees in the first three years. It is also necessary to include information about the economic section and localization of the Brazilian company and its importance for the development of the relevant region. Due to a diversified Brazilian social structure, the investment will have a different effect according to the region.

In this connection (Investment-Social Impact), it should be emphasized that it is not mandatory to invest the amount of R$ 150,000 but a foreign investment is mandatory. Specifically, the social interest issue is considered very important, and the entrepreneur has to convince the Brazilian authorities that his or her work will bring new jobs to Brazilians and develop the Brazilian market; i.e., improve the life of the Brazilian people. If the entrepreneurs are from South America, they will receive special consideration from the members of the National Immigration Council.

There are no minimum qualifications to apply for an investor visa except for the investment. The foreign national may be accompanied by his or her family (spouse and children), who will receive the status of dependents. Once the application is filed with the Ministry of Labor, the processing time is usually 30 days, while the processing time with the National Immigration Council is about 5 months.

The global economic crisis did not affect investments in Brazil. In fact, it made foreign entrepreneurs see that Brazil is a very good country in which to invest, with its stable economy, democracy, consumer market, and natural resources. Unfortunately, we should not forget the Brazilian bureaucracy and its effects on the timeframe of the constitution of a Brazilian company. However, Brazil is improving and let us not forget that the country was built by foreign nationals and will only become a much more developed country with their efforts.

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7. New Publications and Items of Interest

Immigration and occupations. The New York Times recently analyzed Census data and surveys of American attitudes about immigration. The analysis found that although the common perception is that a surge in immigration has overwhelmed the U.S. with low-wage foreign laborers, in reality the 25 million immigrants who live in the largest metropolitan areas in the U.S. are nearly evenly distributed across jobs and incomes, and in 14 of the 25 largest metro areas, more immigrants are employed in white-collar occupations (e.g., professionals, technicians, administrators) than in lower-wage work (e.g., construction, manufacturing, cleaning). The conclusions were based on Census data, a survey published in February’s American Political Science Review, and data analysis conducted by the Fiscal Policy Institute for the New York Times.

The New York Times article is available at http://www.nytimes.com/2010/04/16/us/16skilled.html.

Green card statistics. The Department of Homeland Security’s Office of Immigration Statistics released its Annual Flow Report in April 2010. The report shows that in 2009, a total of 1,130,818 persons became legal permanent residents (LPRs) in the U.S. Nearly two-thirds were granted green cards based on a family relationship. The leading countries of birth of new LPRs were Mexico (15 percent), China (6 percent), and the Philippines (5 percent). Legal immigration increased 2.1 percent from 1,107,126 in 2008 to 1,130,818 in 2009. LPR adjustments of status increased 4.2 percent from 640,568 in 2008 to 667,776 in 2009. Adjustments of status in 2009 were driven by a decrease in applications pending a decision rather than an increasing number of applications received during 2009. Fifty-nine percent of new LPRs in 2009 were adjustments of status and 41 percent were new arrivals California was the state of residence of one-fifth (20 percent) of persons gaining LPR status in 2009. Other leading states of residence included New York (13 percent), Florida (11 percent), Texas (8.4 percent), and New Jersey (5.2 percent).

The report is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/lpr_fr_2009.pdf.

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8. Recent News From ABIL Members

Mark A. Ivener (bio: https://www.abil.com/lawyers/lawyers-ivener.cfm) had an article published in the April 2010 STEP Journal (Society of Trust and Estate Practitioners), “Three Important Immigration Issues Affecting Trust and Estate Attorneys: EB-5 Investor Green Cards; Green Cards and the Exit Tax; and Unplanned U.S. Citizenship.”

Stephen W. Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) commented that the new Arizona law is a recipe for confusion, in PolitiFact. “The courts will have a hard time deciding what constitutes a reasonable suspicion,” he said. Mr. Yale-Loehr also noted in the April 27, 2010, edition of ComputerWorld that the papers immigrants will now be required to carry in Arizona “are very valuable and [immigrants] usually don’t want to take them with you to the gym or the grocery store.” Mr. Yale-Loehr noted that employers will, at the least, “be putting out memos to all of their H-1B workers telling them to make sure they carry around their H-1B documents at all times. Depending on how the law is enforced in the long run, Mr. Yale-Loehr said, “it could slow down the willingness of companies to invest in Arizona if they hire a lot of noncitizens.” The PolitiFact article is available at http://www.politifact.com/truth-o-meter/statements/2010/apr/28/alfredo-gutierrez/arizona-immigration-law-allows-police-question-any/. The ComputerWorld article is available at http://www.computerworld.com/s/article/9176019/Arizona_s_new_papers_please_law_may_hurt_H_1B_workers.

Maria Lianides Celebi (bio: https://www.abil.com/lawyers/lawyers-celebi.cfm), ABIL Global member, was invited to a meeting with Turkey’s Minister of Labor and Social Security, Omer Dincer, to discuss work permits, among other labor topics. The meeting was arranged by the American Chamber of Commerce, which asked Ms. Celebi as their Work Permit Advisor. Discussed at the meeting were issues and questions regarding the issuance of work permits, particularly since changes in Turkey’s law this winter.

During the meeting, Ms. Celebi and her group conveyed concern about whether the one-year interim work permits for engineers/architects have been implemented; the lack of public guidance over the implications of the new biographical questions on the work permit application; and the lack of transparency in denials, among other things. Minister Dincer said he was assured by the Work Permit Directorate that the one-year interim work permits for engineers/architects are in place. Minister Dincer also expressed a desire to keep adjudications down to the new one-month statutory period.

Ms. Celebi noted that electronic filing of work permit applications was recently implemented by the Turkish Ministry. However, supporting documents must still be delivered in hard copy.

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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/frvi/bulletin/bulletin_1360.html

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Headlines:

1. ABIL Meets With USCIS, Proposes Immigration Reforms – ABIL said it believes that employment-based immigration reforms should encompass changes in both nonimmigrant and immigrant visa categories so that the U.S. becomes the most attractive global destination for highly skilled and essential workers.

2. USCIS To Accept FY 2011 H-1B Petitions Beginning April 1 – USCIS will begin accepting H-1B petitions subject to the FY 2011 cap on April 1, 2010.

3. DHS Announces E-Verify Initiatives – The initiatives include a new agreement with the Department of Justice to streamline the adjudication process in cases of E-Verify misuse and discrimination.

4. Office of Foreign Labor Certification Releases Application for Temporary Employment Certification in Fillable PDF Format – The new format provides users with the option to save and reuse the information on the form for future applications.

5. DOL Updates Filing Locations for Certain Prevailing Wage and Labor Cert Programs – The Department of Labor announced a technical change to the filing location address for prevailing wage determination requests in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs, as well as for prevailing wage determination requests for use in the Commonwealth of the Northern Mariana Islands.

6. USCIS Changes Filing Location for Advance Parole Application – The change of filing location for the Application for Travel Document is part of an overall effort to transition the intake of some USCIS forms from local offices and Service Centers to USCIS Lockbox facilities.

7. USCIS Extends Deferred Enforced Departure for Liberians – The sixth-month automatic extension of existing Employment Authorization Documents (EADs) will permit eligible Liberians to continue working while they file their applications for new EADs that will cover the full 12 months of the DED extension.

8. DHS Adds Greece to VWP – Greek nationals can travel under the VWP beginning April 5, 2010.

9. USCIS Releases TPS Application Tips – USCIS provided information and tips about common mistakes in temporary protected status applications.

10. USCIS Reminds Chilean Nationals of Available Benefits – In light of the recent natural catastrophes in Chile, USCIS reminded Chileans of U.S. immigration benefits available to eligible Chilean nationals upon request.

11. USCIS Releases Guidance on Adjudicating P-2 Petitions – In particular, the memo amends previous policy guidance stating that the Service Centers must contact USCIS Headquarters before adjudicating reciprocal exchange agreements that have not been approved previously.

12. Congress Opens H-1B Program to ‘All Smart Educated People’ Worldwide – The legislation, titled the “April Fool’s H-1B Act of 2010,” is expected to be signed immediately by President Obama now that he is done with health care reform and other distractions.

13. ABIL Global: Temporary Foreign Workers – An Important Source of Labor Supply in Canada – Canada’s Temporary Foreign Worker Program enables Canadian employers to hire eligible foreign nationals to work for them in Canada for a specified duration, provided they can demonstrate that the employers cannot find a suitable Canadian/permanent resident to do the job and that the entry of the foreign national will not have a negative impact on the Canadian labor market.

14. Publications and Items of Interest – Publications and Items of Interest

15. Recent News from ABIL Members – Recent News from ABIL Members

16. Government Agency Links – Government Agency Links

Details:

1. ABIL Meets With USCIS, Proposes Immigration Reforms

On March 3, 2010, the Alliance of Business Immigration Lawyers (ABIL) met with Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services (USCIS), and several members of his leadership team. ABIL said it believes that employment-based immigration reforms should encompass changes in both nonimmigrant and immigrant visa categories so that the U.S. becomes the most attractive global destination for highly skilled and essential workers.

ABIL noted inconsistent application of regulations from office to office and recent sudden changes announced by USCIS, such as the delay in the I-9 effective date, which have resulted in companies struggling to meet moving targets and comply with the law. Mr. Mayorkas noted USCIS’ successes but also acknowledged some mistakes. He said USCIS is reviewing policies and field guidance and will determine what should be reaffirmed, withdrawn, or revised in light of input from stakeholders and best practices. He said the agency is developing a system for receiving comments from stakeholders before any new policy change.

ABIL emphasized that H-1B employers should have the right to an attorney during site visits. Moreover, ABIL requested that USCIS reconsider its determination that an individual does not continue to be in lawful status while a case is on appeal.

Among other things, ABIL proposed legitimate avenues under the immigration laws for entrepreneurs to start U.S. businesses, large and small, and thereby obtain work visas and permanent residence. ABIL also proposed legalizing the status of the undocumented in the U.S. so that they may be employed lawfully and contribute to the growth of the economy and the welfare and well-being of the U.S. and its citizens.

ABIL’s membership includes 20 of the top U.S. business immigration law firms, each led by a prominent member of the U.S. immigration bar. ABIL member firms employ over 200 attorneys (400+ total staff) devoted to business immigration in 22 major U.S. cities, plus Brussels, Cologne, Hong Kong, Istanbul, Lima, London, Mexico City, Montreal, Monterrey, Mumbai, Sao Paulo, Shanghai, Sydney, Tokyo, Toronto and Vancouver.

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2. USCIS To Accept FY 2011 H-1B Petitions Beginning April 1

U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap on April 1, 2010. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee, not the date the petition is postmarked.

The fiscal year cap (numerical limitation on H-1B petitions) for FY 2011 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree or higher are exempt from the H-1B cap.

USCIS said it will monitor the number of petitions received and will announce the date on which the agency receives the necessary number of petitions to meet the H-1B cap. If needed, USCIS will randomly select the petitions required to reach the numerical limit from those received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations, or governmental research organizations. Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the H-1B cap until December 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories seeking work dates starting in FYs 2010 or 2011.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count toward the H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the U.S.;
• change the terms of employment for current H-1B workers;
• allow current H-1B workers to change employers; or
• allow current H-1B workers to work concurrently in a second H-1B position.

H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence. USCIS has developed detailed information, including a checklist, to assist in the completion and submission of a FY 2011 H-1B petition.

Contact your Alliance of Business Immigration Lawyers for help in filing H-1B petitions.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5b29dd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The checklist is available at http://www.uscis.gov/files/form/m-735.pdf. Additional information about the FY 2011 H-1B program is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD.

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3. DHS Announces E-Verify Initiatives

The Department of Homeland Security (DHS) announced a trio of E-Verify initiatives on March 17, 2010, including (1) a new agreement with the Department of Justice intended to streamline the adjudication process in cases of E-Verify misuse and discrimination; (2) an informational telephone hotline for workers seeking E-Verify information; and (3) new training videos in English and Spanish on E-Verify procedures and policies, employee rights, and employer responsibilities.

The Memorandum of Agreement signed between USCIS and the Department of Justice’s Office of Special Counsel for Unfair Immigration-Related Employment Practices establishes a streamlined process for addressing potential cases of discrimination and employer misuse of E-Verify and establishes a protocol between USCIS and the Department of Justice for referring matters that fall within the agencies’ respective jurisdictions.

The USCIS E-Verify help line will offer employees information about the E-Verify process, as well as assistance in completing the Form I-9 (Employment Eligibility Verification). Callers can also use the help line to file complaints about possible discrimination or employer misuse of the E-Verify program. The hotline number is (888) 897-7781. It is expected to be active beginning April 5, 2010.

The two new educational training videos were created by the DHS Office for Civil Rights and Civil Liberties and are viewable at http://www.dhs.gov/e-verify and http://www.youtube.com/ushomelandsecurity.

DHS reports that more than 192,000 participating employers at more than 705,000 worksites nationwide currently use E-Verify to electronically verify their workers’ employment eligibility. Since October 1, 2009, E-Verify has processed more than six million queries.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=c7ddadd907c67210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=70beadd907c67210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The Memorandum of Agreement between USCIS and the Department of Justice is available at http://www.uscis.gov/USCIS/Native%20Docs/USCIS_DOJ%20MOA_(signed)_17Mar10.pdf.

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4. Office of Foreign Labor Certification Releases Application for Temporary Employment Certification in Fillable PDF Format

To support implementation of the new H-2A regulations and current H-2B regulations, the Department of Labor’s Office of Foreign Labor Certification (OFLC) is making available the ETA Form 9142, Application for Temporary Employment Certification, in a fillable PDF format. The OFLC said the new format provides users with the option to save and reuse the information on the form for future applications.

The fillable form is available at http://www.foreignlaborcert.doleta.gov/pdf/ETA_Form_9142.pdf.

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5. DOL Updates Filing Locations for Certain Prevailing Wage and Labor Cert Programs

The Department of Labor announced on March 12, 2010, a technical change to the filing location address for prevailing wage determination requests in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs, as well as for prevailing wage determination requests for use in the Commonwealth of the Northern Mariana Islands.

The notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-5443.pdf.

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6. USCIS Changes Filing Location for Advance Parole Application

On March 19, 2010, U.S. Citizenship and Immigration Services (USCIS) announced revised filing instructions and addresses for applicants filing an Application for Travel Document (Form I-131), which is used to apply for a travel document, reentry permit, or advance parole. The agency said the change of filing location is part of an overall effort to transition the intake of some USCIS forms from local offices and Service Centers to USCIS Lockbox facilities.

Beginning March 19, 2010, applicants will file their applications at the USCIS Vermont Service Center or at one of the USCIS Lockbox facilities.

The USCIS Service Centers will forward incorrectly filed I-131 applications to the USCIS Lockbox facilities until Monday, April 19, 2010. After that date, incorrectly filed applications will be returned to the applicant, with a note to send the application to the correct location.

Those who are currently in removal proceedings or have been previously removed from the U.S. should submit requests to the Department of Homeland Security/Immigration and Customs Enforcement, Office of International Affairs, Attn: Section Chief, Law Enforcement Parole Branch, 800 North Capitol Street, Washington, DC 20536.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=81c55ddca7977210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. Information about the form and links to the form and instructions are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b11747a55773d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD.

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7. USCIS Extends Deferred Enforced Departure for Liberians

On March 19, 2010, U.S. Citizenship and Immigration Services (USCIS) automatically extended employment authorization for Liberian nationals covered under Deferred Enforced Departure (DED) through September 30, 2010, following President Barack Obama’s announcement of his decision to extend DED through September 30, 2011, for qualified Liberians and those persons without nationality who last habitually resided in Liberia. USCIS said that the sixth-month automatic extension of existing Employment Authorization Documents (EADs) will permit eligible Liberians to continue working while they file their applications for new EADs that will cover the full 12 months of the DED extension and for USCIS to complete processing and issuance of those new EADs.

Although DED was scheduled to end for Liberian nationals on March 31, 2010, President Obama determined that there are compelling foreign policy reasons to continue deferring enforced departure from the U.S. for eligible Liberian nationals presently living in the U.S. under the existing grant of DED for 18 additional months.

Certain individuals are ineligible for DED, USCIS noted, including Liberians who did not have temporary protected status (TPS) on September 30, 2007, and are therefore not covered under current DED; certain criminals; persons subject to the mandatory bars to TPS; and persons whose removal is in the interest of the U.S.

In addition to automatically extending the validity of employment authorization documents for Liberian nationals covered under DED, USCIS published a notice in the Federal Register on March 30, 2010, with instructions on how to obtain employment authorization for the remainder of the DED extension. The automatic extension covers EADs issued on Form I–766, Employment Authorization Document, bearing an expiration date of March 31, 2010. These EADs must also bear the notation “A–11” on the face of the card under “Category.”

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f47a88eecf777210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD and the Federal Register notice concerning work authorization is available at http://edocket.access.gpo.gov/2010/pdf/2010-7115.pdf. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f11b88eecf777210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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8. DHS Adds Greece to VWP

On March 9, 2010, the Department of Homeland Security designated Greece as a member of the Visa Waiver Program (VWP). Greek nationals can travel under the VWP beginning April 5, 2010. Potential Greek travelers may apply for travel authorization approval under the Electronic System for Travel Authorization (ESTA) beginning immediately. ESTA approval is now required for all VWP travelers wishing to enter the U.S. DHS published a final rule on the designation of Greece on March 31, 2010.

For more information on the VWP and a list of participating countries, see http://travel.state.gov/visa/temp/without/without_1990.html. The final rule is available at http://edocket.access.gpo.gov/2010/pdf/2010-7211.pdf.

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9. USCIS Releases TPS Application Tips

On U.S. Citizenship and Immigration Services’ new blog, The Beacon, the agency has provided information and tips about common mistakes in temporary protected status (TPS) applications. Specifically, USCIS said, it has received thousands of applications since the designation of Haiti for TPS, and has noticed the following problems that may cause delays or rejections:

1. Not including the appropriate filing fee. Those who cannot afford to pay the filling fee may request a fee waiver.
2. Not completing every question on the form.
3. Not including the applicant’s A-number (if he or she has one).
4. Not signing the application.
5. Using an incorrect form to apply for TPS. Use only forms I-821 and I-765 to apply for TPS.

The tips were provided on March 5, 2010, at http://www.uscis.gov/blog/.

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10. USCIS Reminds Chilean Nationals of Available Benefits

In light of the recent earthquakes in Chile, U.S. Citizenship and Immigration Services (USCIS) recently reminded Chileans of U.S. immigration benefits available to eligible Chilean nationals upon request. Options may include the grant of an application for change or extension of nonimmigrant status on behalf of a Chilean national who is currently in the U.S., “even in cases where the request is submitted after the individual’s authorized period of admission has expired”; expedited adjudication and approval, where possible, of requests for off-campus employment authorization due to severe economic hardship for F-1 students; and expedited issuance of employment authorization where appropriate, among others.

For more information on immigration-related benefits available to Chileans, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=c618d0438c947210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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11. USCIS Releases Guidance on Adjudicating P-2 Petitions

U.S. Citizenship and Immigration Services (USCIS) issued a memorandum to the field to provide guidance on processing and adjudicating Form I-129, Petition for Nonimmigrant Worker, filed on behalf of P-2 nonimmigrants. In particular, the memo amends previous policy guidance stating that the Service Centers must contact USCIS Headquarters before adjudicating reciprocal exchange agreements that have not been approved previously.

The memo states that a petitioner must submit evidence that an appropriate labor organization in the U.S. was involved in negotiating, or has concurred with, the reciprocal exchange of the U.S. and foreign artists or entertainers. Given that the Service Centers possess the entire record, USCIS said, they are capable of determining if the reciprocal agreement meets the regulatory requirements. Effective immediately, service centers are not required to contact Headquarters if they encounter a reciprocal agreement not previously approved.

Because there is no requirement that P-2 entertainers be of exceptional ability, supporting documents are limited to basic items: the consultation, a copy of the reciprocal agreement, and evidence that the beneficiaries are subject to the reciprocal exchange.

Four P-2 reciprocal agreements have been negotiated: (1) between the American Federation of Musicians (U.S.) and the American Federation of Musicians (Canada); (2) between Actors’ Equity Association (U.S.) and the Canadian Actors’ Equity Association; (3) between Actors’ Equity Association (U.S.) and the British Actors’ Equity Association; and (4) between the International Council of Air Shows and the Canadian Air Show Association. If a reciprocal agreement is submitted other than these four, USCIS said, the adjudicator must review the agreement to determine if the agreement adheres to the regulatory standard. A list of any new reciprocal agreements is maintained at Headquarters.

The memo is available at http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/2010/p-2-memo-03-11-10.pdf.

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12. Congress Opens H-1B Program to ‘All Smart Educated People’ Worldwide

In a stunning move, both houses of Congress passed surprise legislation with no debate on April 1, 2010, opening the H-1B program to “all smart educated people” worldwide and eliminating the cap. “Let’s just throw open the doors and see what happens,” Rep. John Boehner (R-Ohio) said. Sen. Chuck Schumer (D-NY) chirped, “Now this is what I call true bipartisanship.” Several members noted that his teeth seemed whiter.

The legislation, titled the “April Fool’s H-1B Act of 2010,” is expected to be signed immediately by President Obama now that he is done with health care reform and other distractions.

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13. ABIL Global: Temporary Foreign Workers – An Important Source of Labor Supply in Canada

Canada’s Temporary Foreign Worker Program enables Canadian employers to hire eligible foreign nationals to work for them in Canada for a specified duration, provided they can demonstrate that the employers cannot find a suitable Canadian/permanent resident to do the job and that the entry of the foreign national will not have a negative impact on the Canadian labor market. Employers must note that all individuals wishing to work in Canada require a work permit.

In most cases, unless an exemption is available (a discussion of which is outside the scope of this article), an employer must obtain a favorable labor market opinion (LMO) from Human Resources and Skills Development Canada/Service Canada (Service Canada) before the foreign national can apply to Citizenship and Immigration Canada (CIC) to obtain a work permit. An LMO is Service Canada’s opinion on the likely impact that hiring the foreign national will have on the Canadian labor market.

If an LMO is required to hire a particular foreign national, the prospective Canadian employer must submit an application to Service Canada setting out, among other things: the occupation for which the foreign national is required; details of the job offer including wages and working conditions that will apply to the foreign worker; advertising and recruitment efforts on the employer’s part to hire a Canadian or permanent resident to fill the position; the benefits that the foreign worker’s employment may have to the Canadian labor market; a copy of the employment contract (required in some cases); the number of Canadians/permanent residents currently employed in the organization; whether any Canadians/permanent residents were laid off in the 12 months preceding the application; and education, experience, and skills (including language skills) required for the position.

The advertising requirements with which an employer must comply depend on the skill level of the occupation for which the LMO is being sought, having regard to the National Occupational Classification (NOC) Skill Levels O, A, B, C, and D. Generally, some combination of advertising on the National Job Bank (or the equivalent in Saskatchewan, Quebec, or the Northwest Territories) and/or conducting similar recruitment activities consistent with the practice within the occupation (e.g., Internet job sites, national newspapers, consulting unions, newsletters, or professional associations) is required for a minimum number of days and for a specified duration prior to making the LMO application. However, the specific requirements vary depending on the occupation at issue and should be carefully considered in each individual case.

Employers should seek legal advice to ensure they comply with the requisite advertising standards applicable to their particular case, because failure to comply with the advertising efforts required for the particular NOC level and category at issue will result in an LMO being denied.

If a favorable LMO is issued, the employer must send a copy of the written confirmation to the worker along with a signed job offer (and employment contract, if required). The foreign national then applies to CIC for a work permit, the issuance of which depends on the foreign national meeting admissibility requirements and is within the discretion of the CIC officer and Canada Visa and Border Services officer assessing the work permit application and the foreign national’s entry into Canada, respectively.

Employers should be aware that any LMO issued to them expires 6 months from the issuance date and unless, within this time frame, the foreign national has applied to CIC for a work permit and certain other requirements have been met, the LMO will be deemed to expire and the employer will need to apply for a new LMO to hire a foreign worker.

Also, it should be noted that extensions of an LMO are no longer permitted. The elimination of the extension application is of particular importance to employers wishing to continue the employment of a foreign national beyond the duration of his or her current work permit. Employers should seek legal advice for their particular situation to ensure that they apply for a new LMO in a timely fashion so they can continue to employ their chosen foreign workers as desired.

Legal advice should also be sought regarding proposed changes to the Temporary Foreign Worker Program that will introduce a number of factors applicable to the assessment of the genuineness of an employer’s job offer of employment under this program. These proposed changes, if enacted, will lead to a more rigorous approach to the assessment of LMO and LMO-exempt cases.

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14. Publications and Items of Interest

New USCIS blog. U.S. Citizenship and Immigration Services (USCIS) has launched The Beacon, the agency’s official blog and newest tool that provides immigration-related information and “fosters an open dialogue with the public.”

USCIS said The Beacon is intended to provide an important resource for information about USCIS as well as “a forum through which readers can engage USCIS staff and others who are interested in immigration and naturalization issues.” USCIS said readers “are encouraged to submit comments, ideas, concerns, and constructive criticism.”

USCIS will review all comments before posting. Detailed guidance is provided on the blog under the comment policy. The Beacon is available at http://www.uscis.gov/blog.

H-1B supply and demand in 2010 and beyond. The National Foundation for American Policy (NFAP) has released a study, “H-1B Visas By the Numbers: 2010 and Beyond,” which concludes that demand for H-1Bs will contribute to employers likely reaching the annual cap in the new fiscal year. “The supply of H-1B visas has been exhausted during or before each of the past seven fiscal years, often leaving employers with no choice but to hire skilled foreign nationals outside the United States or see these scientists, engineers and professionals lost to competitors overseas,” said NFAP Executive Director Stuart Anderson. With the annual flow of H-1Bs representing only 0.06 percent of the U.S. labor force in 2009, the study notes, arguments that H-1B professionals overwhelm the U.S. workforce are not supported by the facts. Surveys of Indian and Chinese professionals who have left the U.S. show that visa constraints played a role in their decision to leave. This exodus, the study argues, will continue absent immigration law reform. Liberalizing H-1B and green card limitations would help employers innovate and create more jobs in the U.S., the study concludes.

The NFAP study is available at http://www.nfap.com/pdf/1003h1b.pdf.

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15. Recent News from ABIL Members

Mark Ivener (bio: https://www.abil.com/lawyers/lawyers-ivener.cfm) presented “EB-5 Investor Green Cards” to the Los Angeles County Bar Association’s EB-5 Seminar, held on March 20, 2010, in Los Angeles, California.

Maria Celebi (bio: https://www.abil.com/lawyers/lawyers-celebi.cfm) delivered a presentation on March 18, 2010, about changes in the Turkish Work Permit laws, on behalf of the American Chamber of Commerce in Turkey (ABFT) at an informational meeting and reception at the U.S. Consulate in Istanbul.

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16. 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/frvi/bulletin/bulletin_1360.html

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