Headlines:

1. H-1B Update: Filing Date Approaches; Scrutiny at POEs Increases; USCIS Issues H-1B Guidance Under Economic Stimulus – Employers will be able to submit cap-subject H-1B petitions on April 1, 2010, for the FY 2011 H-1B program.

2. State Dept. Proposes Fee Changes for Consular Services – Among other things, the application fee for an employment-based immigrant visa processed on the basis of an I-140 petition will increase to $720.

3. USCIS To Issue Revised Approval Notices for Certain I-129s and I-539s – Certain Notices of Approval were issued between January 20 and 27, 2010, with incorrect or missing information.

4. Labor Dept. Publishes H-2A Final Rule – The final rule affects various aspects of the temporary agricultural employment of H-2A workers.

5. USCIS Issues Guidance on H Nonimmigrants in the CNMI and Guam – H-1B and H-2B workers in the CNMI and Guam are exempt from the caps.

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

7. Recent News from ABIL Members – Recent News from ABIL Members

8. Government Agency Links – Government Agency Links

Details:

1. H-1B Update: Filing Date Approaches; Scrutiny at POEs Increases; USCIS Issues H-1B Guidance Under Economic Stimulus

H-1B filing date approaches. Employers will be able to submit cap-subject H-1B petitions on April 1, 2010, for the fiscal year (FY) 2011 H-1B program. The numerical limitation, or cap, for FY 2010 was reached in December 2009. Beneficiaries of cap-subject petitions may begin employment as early as October 1, 2010. Employers recruiting abroad or who have hired individuals for F-1 “Optional Practical Training” should prepare to have their petitions delivered to U.S. Citizenship and Immigration Services (USCIS) on April 1, 2010.

Petitions are only subject to the FY 2011 cap if the beneficiary of that petition has not been counted against a cap previously. Thus, “new” H-1B petitions are cap-subject but most petitions for extension, change of employer, or concurrent employment are not affected by the H-1B cap. Further, petitions on behalf of foreign nationals to be employed by institutions of higher education (or related or affiliated nonprofit entities), nonprofit research organizations, or governmental research organizations are not subject to the cap, but if an employer wishes to hire an H-1B employee currently employed at such an organization, the new petition would be cap-subject.

Scrutiny at POEs. Recent reports suggest that scrutiny at ports of entry is increasing for H-1Bs and other employment-based visas, especially those working for information technology consulting firms and those posted at third party worksites. The Alliance of Business Immigration Lawyers (ABIL) recommends that entering nonimmigrants be familiar with the petition filed on their behalf, and that they carry a complete copy of the filing and supporting documents along with up-to-date documentation confirming their employment, such as recent paystubs. Entering H-1Bs should be prepared for the possibility of secondary inspection at the port of entry.

Economic stimulus guidance. Meanwhile, USCIS has issued guidance on the Employ American Workers Act (EAWA) to employers seeking to file H-1B petitions. EAWA was enacted to ensure that companies that receive funding under the Troubled Asset Relief Program (TARP) or the Federal Reserve Act do not displace U.S. workers. Under the legislation, any company that has received covered funding and seeks to hire new H-1B workers is considered an “H-1B dependent employer.” An H-1B dependent employer must make additional statements to the Department of Labor (DOL) regarding the recruitment and non-displacement of U.S. workers when filing a labor condition application (LCA).

Subsequent to the enactment of EAWA, USCIS revised its Form I-129, Petition for a Nonimmigrant Worker, to include a question asking whether the employer received covered funding.

USCIS said it understands that some businesses who received covered funding may have repaid their obligations and may not know how to respond to the question (A.1.d on the first page of the H-1B Data Collection and Filing Fee Exemption Supplement). Companies that have repaid their obligations under the law should answer “No” to question A.1.d. Those that wish to provide further information with the petition to assist USCIS in determining that their status for purposes of EAWA is correct may do so.

USCIS noted that a valid LCA must be on file with DOL when the H-1B petition (with a copy of the LCA) is filed with USCIS. Processing delays or a denial of the H-1B petition may result if the LCA does not correspond with question A.1.d of the H-1B petition, unless any inconsistency is explained to the satisfaction of USCIS. For example, if the LCA includes the additional statements, but question A.1.d is answered “no,” the employer can explain that it had received covered funding at the time of filing the LCA but repaid the obligation before filing the I-129. However, if the employer indicates on the petition that it is subject to the EAWA, but the LCA does not contain the proper declarations relating to H-1B dependent employers, USCIS will deny the H-1B petition.

USCIS additionally reminds employers that EAWA applies only to new hires and not to H-1B petitions seeking to change the status of a beneficiary working for the petitioning employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of H-1B status for a current employee to continue working for the same employer.

Demand for H-1Bs is expected to increase somewhat this year, so early filing is recommended. Contact your ABIL member for assistance with H-1B petitions.

The EAWA guidance is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=aeda00143ea96210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. For more on H-1B admissions and scrutiny at ports of entry, see http://cyrusmehta.blogspot.com/2010/02/more-on-h-1b-admissions-at-newark.html.

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2. State Dept. Proposes Fee Changes for Consular Services

The Department of State has proposed changes and increases to its schedule of fees for consular services, to take effect “as soon as practicable following the expiration of the 30-day public comment period” and after the Department has considered any public comments received. Written comments must be received within 30 days from February 9, 2010.

Among other things, the proposed rule establishes a tiered application processing fee for immigrant visas depending on the category, instead of the current $355 fee for all immigrant visas. The application fee for an employment-based visa processed on the basis of an I-140 petition will be $720. Other immigrant visa applications (including for diversity visa applicants, I-360 self-petitioners, special immigrant visa applicants and all others) will have a fee of $305. Certain qualifying Iraqi and Afghan special immigrant visa applicants are statutorily exempt from paying a processing fee. The application fee for a family-based visa processed on the basis of an I-130, I-600, or I-800 petition will be $330. The Department is also increasing the immigrant visa security surcharge from $45 to $74.

Those who apply for immigrant visas on the basis of having been selected by the diversity visa lottery will pay $440 instead of $375, based on an estimated 81,000 applications to be processed in fiscal year 2010.

Also, the proposed rule increases the adult passport application fee from $55 to $70. Certain consular services performed for no fee have been included in the fee schedule “so that members of the public will be aware of significant consular services provided by the Department for which they will not be charged.” Nonimmigrant visa fees, including those for machine-readable visas and border crossing cards, were included in a separate rule published on December 14, 2009.

The proposed rule, which was published on February 9, 2010, is available at http://edocket.access.gpo.gov/2010/pdf/2010-2816.pdf.

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3. USCIS To Issue Revised Approval Notices for Certain I-129s and I-539s

U.S. Citizenship and Immigration Services (USCIS) issued an alert about certain Notices of Approval (Forms I-797) issued between January 20 and 27, 2010, with incorrect or missing information. The form types affected are the Petition for a Nonimmigrant Worker (Form I-129) and the Application to Extend/Change Nonimmigrant Status (Form I-539).

USCIS has started mailing new approval notices with corrected information to affected I-129 petitioners and I-539 applicants. Petitioners and applicants who received incomplete or incorrect approval notices should not attempt to use them. USCIS estimates that approximately 500 incorrect I-797s were issued. Examples of errors on the approval notices of affected petitioners and applicants include:

• For the I-129, petitioners who requested multiple unnamed beneficiaries were issued an approval notice that lists only one unnamed beneficiary.
• For the I-539, some applicants were issued an approval notice with no validity dates listed.

Those who know or believe that their Notice of Approval was issued with incorrect or missing information but have not yet received a revised Notice of Approval should contact USCIS at the appropriate e-mail address listed in the USCIS alert, available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=72d059ac05b86210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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4. Labor Dept. Publishes H-2A Final Rule

The Department of Labor’s (DOL) Employment and Training Administration and Wage and Hour Division have published a final rule effective March 15, 2010, affecting various aspects of the temporary agricultural employment of H-2A workers.

In response to the proposed rule, the DOL received comments from a broad range of constituencies for the H-2A program, including individual farmers, farm workers, farm associations, farm worker advocate groups, agents, law firms, farm labor bureaus, State Workforce Agencies (SWAs), state government officials, members of Congress and committees, and various interested members of the public. Many of the comments challenged the DOL’s decision to engage in new rulemaking for the H-2A program. The DOL responded that it has inherent authority to change its regulations, and has justified doing so in the final rule.

Among other things, in the definition of corresponding employment, the DOL had proposed that all workers employed by H-2A employers doing work performed by H-2A workers be considered engaged in corresponding employment. The final rule adopts the language of the proposed rule. One change from the related 1987 rule is the addition of the phrase “or in any agricultural work performed by the H-2A workers.” The DOL said it added this language to address the adverse impact on U.S. workers when an H-2A employer engages H-2A workers in agricultural work outside the scope of work found in the approved job order, including work impermissibly performed outside the area of intended employment. The DOL explained that “[d]omestic workers should not be disadvantaged when an employer violates the terms and conditions of the H-2A job order.” The final rule does not require that every worker on a farm be paid the H-2A required wage. It does require, however, that workers employed by an H-2A employer who perform the same agricultural work as the employer’s H-2A workers be paid at least the H-2A required wage for that work.

Also, the rule adds one factor to the circumstances that may be considered in determining whether an employer is a successor in interest. The change, as noted in the proposed rule, clarifies that whether the former management or persons with an ownership interest in the prior firm retain a management interest in the successor firm may be considered in the successor determination.

The final rule also makes various adjustments to the definition of agricultural labor or services. For example, it removes a provision that permitted certain nonagricultural work when no H-2B workers were employed to perform the same work in the same location. Such nonagricultural work may include activities like handling, planting, drying, packing, processing, freezing, grading, storing, or delivering agricultural or horticultural commodities. A commenter had expressed disappointment about the removal of that provision, stating that it was a major change and would adversely affect packing houses that might not be able to obtain H-2B workers due to the annual cap, and noting that H-2B workers often work alongside H-2A workers and their jobs are clearly in the stream of agriculture. The DOL said the provision was problematic because it allowed a farmer to employ both H-2A and H-2B workers to perform identical work, so long as the H-2A workers and H-2B workers were employed in different locations. But Congress clearly intended to create two separate programs, the DOL noted: one for H-2A agricultural work and another for H-2B nonagricultural work.

The final rule further removes references to incidental work from the definition of agricultural labor or services, in an effort to tighten up what kinds of work may be performed. For example, the final rule deletes a provision providing a blanket 20 percent tolerance for work outside the scope of the application. The DOL explained that it does not intend to debar an employer whose H-2A workers perform an insubstantial amount of agricultural work not listed in the application. The DOL said that it may take into account unplanned and uncontrollable events (such as a freeze that prevents planting or heavy rains that prevent harvesting) when considering the employer’s explanation, so long as the activities are within the scope of H-2A agriculture, have been occasional or sporadic, and the total time spent is not substantial. Further, the DOL noted, the debarment regulations require that a violation be substantial, and that a number of factors must be considered in making that determination, including an employer’s previous history of violations; the number of workers affected; the gravity of the violation; the employer’s explanation, if any; its good faith; and its commitment to future compliance. Under these criteria, the DOL said, the good-faith assignment of a worker to work not listed in the application for a small amount of time would not result in debarment.

The final rule, which also includes a long discussion of wage rates and adds the agreed-upon collectively bargained wage rate to the list of required wage rates, is available at http://edocket.access.gpo.gov/2010/pdf/2010-2731.pdf. A related fact sheet is available at http://www.dol.gov/opa/media/press/eta/eta20100198-fs.htm, and a news release is available at http://www.dol.gov/opa/media/press/eta/eta20100198.htm.

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5. USCIS Issues Guidance on H Nonimmigrants in the CNMI and Guam

U.S. Citizenship and Immigration Services (USCIS) has provided guidance for processing and adjudicating the Petition for a Nonimmigrant Worker (Form I-129) filed on behalf of H-1B specialty occupation and H-2B temporary nonagricultural workers in the Commonwealth of the Northern Mariana Islands (CNMI) and Guam. The memo notes that H-1B and H-2B workers in the CNMI and Guam are exempt from the numerical limitations, or caps, for these categories. To qualify for this exemption under the H-1B classification, the prospective employer’s petition must include a labor condition application (LCA) listing employment or services in the CNMI and/or Guam only. To qualify under the H-2B classification, the petition must include a temporary labor certification (TLC) listing labor or services in the CNMI and/or Guam only.

The memo is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2010/February/cnmi-guam-h-cap-exemption.pdf. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=a310bc3c1be96210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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6. New Publications and Items of Interest

Undocumented statistics. The Department of Homeland Security’s Office of Immigration Statistics has published Estimates of the Unauthorized Immigrant Population Residing in the United States: January 2009. The report provides estimates of the undocumented population residing in the U.S. by periods of entry, leading countries of birth, and states of residence.

The data show that between January 2008 and January 2009, the number of undocumented people living in the U.S. decreased seven percent, from 11.6 million to 10.8 million. Between 2000 and 2007, the unauthorized population grew by 3.3 million, from 8.5 million to 11.8 million. An estimated 8.5 million of the total 10.8 million undocumented persons living in the U.S. in 2009 were from the North America region, including Canada, Mexico, the Caribbean, and Central America. The next leading regions of origin were Asia (980,000) and South America (740,000). Mexico continued to be the leading source of unauthorized immigration to the U.S., with 62 percent of the undocumented population from Mexico. California remained the leading state of residence of the unauthorized population in 2009, with 2.6 million. The next leading state, Texas, had 1.7 million unauthorized residents, followed by Florida with 720,000.

The report is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/ois_ill_pe_2009.pdf.

DOS annual report on immigrant visa applicants. The Department of State (DOS) has released its annual report on immigrant visa applicants in the family and employment categories as of November 1, 2009. The figures reflect only petitions the DOS has received and do not include the significant number of applications pending at U.S. Citizenship and Immigration Services, such as applications for adjustment of status. As of November 1, 2009, the DOS’s figures show that approximately 3.5 million immigrant visa applicants (and their spouses and children) are on the waiting list in the employment-based categories. That total includes 3,601 in the EB-1 category; 6,295 in EB-2; 119,759 in EB-3 (including 103,448 skilled and 16,311 other workers); 529 in EB-4; and 325 in EB-5. The report also includes listings of the countries with the highest number of waiting list registrants in each category.

The report is available at http://www.immigration.com/sites/default/files/annual_report_Immvisa_applicants.pdf. For the latest information on visa issuances at foreign service posts, see http://www.travel.state.gov/visa/frvi/statistics/statistics_4594.html.

Haiti information. U.S. Citizenship and Immigration Services (USCIS) has posted links to immigration information and resources available from USCIS and the Department of State in response to the Haiti earthquake. Included are links on temporary protected status, humanitarian parole, and special situations. The page is posted at http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#1.

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7. Recent News from ABIL Members

Laura Danielson (bio: https://www.abil.com/lawyers/lawyers-danielson.cfm) and Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) gave an EB-5 talk on February 4, 2010, at a Minnesota State Bar Association seminar on immigration investment issues.

Steve Garfinkel (bio: https://www.abil.com/lawyers/lawyers-garfinkel.cfm) will present “Immigration law issues affecting Public Schools” to the North Carolina School Law Academy in Hickory, North Carolina, on Thursday, March 18, 2010.

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8. Government Agency Links

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

USCIS Service Center processing times online: 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. USCIS Releases Tips on Filing I-140 Immigrant Petition for Alien Worker – USCIS released a Q&A on ways to ensure that an Immigrant Petition for Alien Worker will not be rejected.

2. USCIS Is Reissuing Advance Parole Documents To Correct Date – USCIS is reissuing Advance Parole documents because some were mailed to applicants with an incorrect issue date; all advance parole documents continue to be valid because the expiration dates remain accurate.

3. DHS Adds 11 Countries to Designated List for Participation in H-2A, H-2B Programs – DHS has designated 39 countries whose nationals are eligible to participate in the H-2A and H-2B nonimmigrant programs.

4. DOL Releases List of Important E-Mail Addresses – The e-mail addresses pertain to PERM system, labor condition application and prevailing wage, and H-2A/H-2B issues.

5. ICE Updates List of SEVP-Approved Schools – ICE released an updated list of schools approved under the Student and Exchange Visitor Program.

6. AAO Processing Times Released – The chart shows Administrative Appeals Office processing times by case type.

7. USCIS Issues Q&A on Filing Instructions for E-2 CNMI Investors – The E-2 CNMI investor rule has not been finalized, so USCIS is not yet accepting petitions.

8. ABIL Global: UK Identity Cards for Foreign Nationals – The credit card-sized ICFN is designed to be carried with the migrant at all times.

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

10. Recent News from ABIL Members – Recent News from ABIL Members

11. Government Agency Links – Government Agency Links

Details:

1. USCIS Releases Tips on Filing I-140 Immigrant Petition for Alien Worker

On January 21, 2010, U.S. Citizenship and Immigration Services (USCIS) released a Q&A on ways to ensure that an Immigrant Petition for Alien Worker (Form I-140) will not be rejected. Some tips include:

• Use the most current edition of the form, although older editions may be accepted.
• Make sure you follow the instructions carefully regarding which location to file your I-140 petition.
• Select only one visa preference category in Part 2 of the I-140. (USCIS will reject the I-140 petition if Part 2 is left blank or if more than one visa preference category is selected in Part 2.)
• Respond to all questions and provide information in all of the “answer” and “check” boxes. Write “none” or “n/a” in an answer box if a question does not apply to you.
• Print or type information using black ink only. Do not “highlight” or “background shade” your entries.
• Make sure the petitioner signs the I-140.
• Include the correct fee specified in the form instructions. If you file the petition with other related applications for the beneficiary, attach the fee to the petition by paper clip or staple, and indicate the name of the applicant on the payment document (i.e., in the memo field).
• Submit one check per application. If more than one petition or application is filed using a single check, and any of the forms are found to be improperly filed, all forms will be rejected.
• Submit Form G-28, Notice of Entry of Appearance as Attorney or Representative, if applicable (with original signatures of both the representative and the applicant or petitioner).
• For petitions that are filed electronically, send the supporting documentation to the address identified in the directions for e-filing Do not submit any other paper-filed applications or petitions with the supporting documentation for the electronically filed I-140.

Other questions and answers include what to do if an incorrect visa category is selected in Part 2; what to do if the petitioner wants to request consideration of multiple visa categories on behalf of a worker; how to file an I-140 that requires a Department of Labor-approved labor certification; and how to organize the evidence with the I-140 petition.

The memo also includes tips for various types of I-140s, such as aliens of extraordinary ability; outstanding professors or researchers; multinational executives or managers; aliens of exceptional ability; members of the professions holding an advanced degree; and national interest waivers.

Among other things, the memo discusses how a successor employer can establish a successor-in-interest relationship with a predecessor employer in order to use that employer’s approved labor certification when filing an I-140 on behalf of the beneficiary named on the labor certification; and tips on “porting” to a different employer if a beneficiary’s I-140 is still pending.

The memo is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=cfe8745543256210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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2. USCIS Is Reissuing Advance Parole Documents To Correct Date

U.S. Citizenship and Immigration Services (USCIS) announced on January 27, 2010, that it is reissuing Advance Parole (Form I-512) documents because some documents were mailed to applicants with an incorrect issue date of January 5, 1990. All affected documents have been identified and USCIS will automatically reissue those documents.

USCIS said all advance parole documents continue to be valid because the expiration dates remain accurate. Therefore it is not necessary for applicants to contact USCIS regarding their pending applications unless their application is outside the normal processing time of 90 days.

Those who need to travel urgently and have received a document with an invalid issue date may travel using the incorrectly dated document, USCIS said. U.S. Customs & Border Protection (CBP) has been alerted, and travelers may be questioned about the issuance date. USCIS advises printing the notice to share with CBP if necessary. The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=95641a510c076210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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3. DHS Adds 11 Countries to Designated List for Participation in H-2A, H-2B Programs

The Department of Homeland Security (DHS) has designated 39 countries whose nationals are eligible to participate in the H-2A and H-2B nonimmigrant programs. DHS said that the 28 countries designated in its December 2008 notices continue to meet the standards and therefore should remain on the list. With the concurrence of the Department of State, DHS has added 11 countries to the list for the first time, including Croatia, Ecuador, Ethiopia, Ireland, Lithuania, the Netherlands, Nicaragua, Norway, Serbia, Slovakia, and Uruguay. The other 28 countries are Argentina, Australia, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Indonesia, Israel, Jamaica, Japan, Mexico, Moldova, New Zealand, Peru, Philippines, Poland, Romania, South Africa, South Korea, Turkey, Ukraine, and the United Kingdom.

The notice is available at http://edocket.access.gpo.gov/2010/pdf/2010-960.pdf.

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4. DOL Releases List of Important E-Mail Addresses

The Department of Labor recently released a list of important e-mail addresses pertaining to the PERM system, labor condition applications and prevailing wages, and H-2A/H-2B issues. The list is available at http://www.aila.org/content/default.aspx?docid=27762.
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5. ICE Updates List of SEVP-Approved Schools

On January 20, 2010, U.S. Immigration and Customs Enforcement released an updated list of schools approved under the Student and Exchange Visitor Program. The list is available at http://www.ice.gov/doclib/sevis/pdf/ApprovedSchools.pdf.
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6. AAO Processing Times Released

The American Immigration Lawyers Association has released a chart showing Administrative Appeals Office (AAO) processing times by case type, as of January 4, 2010. The chart is available at http://www.aila.org/content/default.aspx?docid=31122.
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7. USCIS Issues Q&A on Filing Instructions for E-2 CNMI Investors

The Consolidated Natural Resources Act of 2008 (CNRA) extends certain provisions of U.S. immigration law to the Commonwealth of the Northern Mariana Islands (CNMI) for the first time. The transition period for this change began on November 28, 2009. Under the CNRA, U.S. Citizenship and Immigration Services (USCIS) is establishing an E-2 CNMI investor classification, to allow foreign nationals who were admitted as long-term investors under the CNMI immigration laws to remain in the CNMI through the transition period.

The E-2 CNMI investor rule has not been finalized, so USCIS is not yet accepting petitions. The program will be in effect only during the transition period, scheduled to expire on December 31, 2014. The E-2 CNMI investor classification and related visas will expire that day, although USCIS noted that the Department of Homeland Security may extend the transition period.

A related Q&A on filing instructions is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e2546f4affa66210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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8. ABIL Global: UK Identity Cards for Foreign Nationals

In November 2008, the United Kingdom (UK) Border Agency (UKBA) set out its plan to introduce a requirement for all non-British or European Economic Area (EEA) nationals applying for leave to enter or remain in the UK to register biometric data as part of their visa applications. An applicant’s biometric data and permission to enter or remain in the UK is recorded in an Identity Card for Foreign Nationals (ICFN), replacing the vignette sticker placed in the migrant’s passport as a certificate of permission to enter or remain in the UK.

All relevant applicants and their dependents must now attend an appointment in person to give facial and fingerprint information, which is encoded on a secure readable microchip embedded within the ICFN. The credit card-sized ICFN is designed to be carried with the migrant at all times, and presented with the migrant’s passport upon entry into, and exit from, the UK and without which the migrant may be refused entry. The information stored on the ICFN is designed to be scanned upon entry to the UK and by UKBA staff performing compliance visits, and is heralded as a key tool in the detection of forged travel and ID documents and ultimately a step closer to the UKBA’s goal of eliminating undocumented work in the UK.

ICFN scheme extended to skilled workers under Tier 2 of the Points Based System. The ICFN scheme initially applied only to those applying to remain in the UK under the student category and the spouse, unmarried partner, same-sex partner and civil partner category, which the UKBA asserts are the high-risk immigration routes for identity fraud and visa abuse. Between December 2009 and March 2009, the UKBA extended the requirement for an ICFN to include migrants applying to remain in the UK as students under Tier 4 of the Points Based System (PBS), and to non-PBS categories, including post-graduate doctors and dentists, academic visitors (extending beyond six months in total), domestic workers in private households, UK ancestry, and the sole representatives of overseas business categories.

On September 24, 2009, the UKBA announced that starting in January 2010, all foreign nationals applying for an extension of their immigration permission (leave to remain) as a skilled worker under Tier 2 and their dependents in the UK would require an ICFN as part of their application. On December 10, 2009, the UKBA announced that the requirement would be implemented from January 6, 2010. Employers therefore had less than one month over the holiday period to assist any employees in the UK with leave to remain as a work permit holder nearing expiration with the submission of an extension application prior to the implementation date. Any applications submitted on or after January 6, 2010, would require in-person biometrics appointments as part of the application process.

The UKBA has confirmed on its Web site that it intends to further extend ICFNs to all highly skilled migrant applications submitted in the UK under Tier 1 of the PBS later in 2010.

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9. New Publications and Items of Interest

Global Workforce Impact Survey. Western Union and The Economist have published the “Western Union Global Workforce Impact Survey.” The report notes that nearly one out of six people worldwide has migrated, representing a vast mobile workforce. This includes 740 million who are traveling within their own country, and 200 million who are moving across international borders.1 With more people on the move, the report says, international migration is increasingly recognized as central to economic vitality and global competitiveness. Varying immigration laws among countries often limit a company’s ability to hire the necessary talent, the report notes: “With an eye fixed on the future, businesses increasingly see open immigration policies as enabling them to expand quickly when the economy turns around.” The report calls for policymakers to address these business needs by developing flexible immigration policies that minimize the barriers to mobility and address concerns about the impact of foreign workers on domestic wages, working conditions, and opportunities. The survey of 501 senior executives was designed to provide new insight into business attitudes and practices toward cross-border workforce supplies. More than three out of four (76 percent) respondents believe that foreign workers have a positive impact on the economy.

The report is available at http://corporate.westernunion.com/global_migration.html.

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10. Recent News from ABIL Members

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was featured recently on CNN in an interview/commentary on letting Haitians stay in the U.S. via temporary protected status. The video is available at http://newsroom.blogs.cnn.com/2010/01/24/letting-haitians-stay-in-the-united-states/.
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11. Government Agency Links

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

USCIS Service Center processing times online: 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. FY 2010 H-1B Cap Reached – December 21, 2009, is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010.

2. H-1C Nonimmigrant Nurse Classification Expires – The H-1C nonimmigrant nurse category expired on December 21, 2009.

3. USCIS Changes Address of Filing Location for Naturalization Applications – USCIS announced revised addresses for naturalization applications filed at USCIS Lockbox facilities in Phoenix and Dallas.

4. Did USCIS Immediately Deny Your Adjustment of Status Application Following a Change of Employment? – USCIS’s ombudsman asks that those who think their cases may have been denied erroneously to forward the ombudsman a case problem.

5. USCIS Ombudsman Discusses Pending Derivative I-485s Due to File Separation – If a family member’s derivative adjustment of status application has been pending in excess of 30 days from the approval date of the principal applicant’s I-485, the ombudsman will review e-mailed documentation.

6. State Dept. Withdraws Proposed Rule on Secondary School Students Under Exchange Visitor Program – The Department withdrew the proposed rule because it was submitted before the OMB completed its review.

7. Labor Dept. Announces Centralization of Prevailing Wage Determinations – The National Prevailing Wage and Helpdesk Center will receive and process prevailing wage determination requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs.

8. State Dept. Proposes Increase in Nonimmigrant Visa Application, BCC Fees – The Department of State published a proposed rule on December 14, 2009, to increase nonimmigrant visa application processing and BCC fees.

9. CNMI Update: Advance Parole, Biometrics/Interviews – Among other things, USCIS reminds noncitizens living in the CNMI to apply for advance parole before traveling abroad if they do not otherwise have U.S. lawful permanent resident status or an appropriate U.S. visa.

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

11. Recent News from ABIL Members – Recent News from ABIL Members

12. Government Agency Links – Government Agency Links

Details:

1. FY 2010 H-1B Cap Reached

U.S. Citizenship and Immigration Services (USCIS) announced on December 22, 2009, that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2010. December 21, 2009, is the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY 2010. Regulations now provide that H-1B petitions received by USCIS on or before December 19 (because of the weekend) have been submitted “under the cap,” but H-1B petitions received by USCIS on or after December 22, 2009, will be rejected.

USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. Properly filed cases will be considered received on the date that USCIS physically receives the petition, not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2010 that arrive after December 21, 2009.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009. USCIS will reject, and return the fee, for all cap-subject petitions not randomly selected.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the congressionally mandated FY 2010 H-1B cap. Therefore, 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
• allow current H-1B workers to work concurrently in a second H-1B position

Now that the FY 2010 cap has been reached, the earliest an employer can file a new H-1B petition will be April 1, 2010, with an employment start date of October 1, 2010.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=153a1638367b5210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

For more details on the H-1B count, see http://www.uscis.gov/h-1b_count. For information on the temporary acceptance of H-1B petitions without Department-certified LCAs, see http://www.uscis.gov/USCIS/Laws/Memoranda/2009/h-ib-petitions-temporary-acceptance.pdf. For a Q&A on the same topic, see http://www.foreignlaborcert.doleta.gov/pdf/FAQ_PERM_Appeals_Filing_Final_12012009.pdf.

Although no new H-1B petitions will be accepted, there are still a number of solutions available to employers and foreign professionals. For example, some foreign students may be able to extend their pre- or post-graduation employment authorization. Citizens of Canada, Mexico, Chile, Singapore and Australia may want to consider free trade visa benefits. Many other nonimmigrant work visa categories exist. Employers and foreign nationals should consult with your ABIL attorney to determine possible eligibility for these benefits.

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2. H-1C Nonimmigrant Nurse Classification Expires

The H-1C nonimmigrant nurse category expired on December 21, 2009. The classification authorized the admission of up to 500 nurses annually to work in eligible health care facilities. After the original 1999 statutory authorization of the program expired in 2005, Congress reauthorized it for three years beginning December 20, 2006, in the Nursing Relief for Disadvantaged Areas Reauthorization Act of 2005. The statutory authority for the program has not been extended.

U.S. Citizenship and Immigration Services noted that this expiration does not affect the ability of H-1C nurses currently in status to continue employment during their authorized period of stay, the authority of USCIS to adjudicate a petition properly filed on or before December 21, 2009, or the eligibility of the beneficiary of an approved H-1C petition to be admitted to the U.S. as an H-1C nonimmigrant.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=34291c5944e95210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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3. USCIS Changes Address of Filing Location for Naturalization Applications

U.S. Citizenship and Immigration Services (USCIS) announced on December 17, 2009, revised addresses for applicants filing an Application for Naturalization (Form N-400) at USCIS Lockbox facilities in Phoenix and Dallas. The filing address change took effect immediately.

Applicants who previously filed their applications at the Lewisville Post Office (P.O.) Box will now file their applications at a P.O. Box in Dallas. In addition, USCIS noted a change to the USCIS Phoenix Lockbox address. Starting immediately, applicants filing an N-400 at the USCIS Dallas or Phoenix Lockbox must submit the application and all supporting documents and fees to the new addresses, based on where they live. The new addresses are available at the link below.

The U.S. Postal Service forwarded mail from the Lewisville Post Office to the new post office in Dallas until December 31, 2009. After that date, USCIS noted, the Postal Service will forward the mail through normal channels, “which will likely delay receipt at the Dallas Lockbox facility.”

Applicants filing an N-400 under military provisions (INA Section 328 or 329), should file their application at the Nebraska Service Center, P.O. Box 87426, Lincoln, NE 68501-7426, regardless of where the applicant lives. This includes current military spouses regardless of geographic location or jurisdiction.

Those filing an N-400 at a USCIS Lockbox facility may elect to receive an e-mail and/or text message notification that the application has been accepted. The applicant must complete an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of the application.

The N-400 form instructions have been updated to reflect the new filing locations. The new addresses are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=91cc1c5944e95210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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4. Did USCIS Immediately Deny Your Adjustment of Status Application Following a Change of Employment?

The U.S. Citizenship and Immigration Services (USCIS) ombudsman’s office reported that it has received reports of the agency not issuing Notices of Intent to Deny following a change of jobs, as required by the American Competitiveness in the 21st Century Act (AC21) and USCIS policy guidance, but instead is immediately denying pending Form I-485 (Application to Register Permanent Residence or Adjust Status) applications.

If a foreign national is (1) the beneficiary of an approved Form I-140 (Petition for Immigrant Worker); and (2) has an I-485 pending for 180 days or more, the ombudsman notes, he or she is eligible to change to a same or similar position. If the underlying approved I-140 is withdrawn, and no evidence of a new qualifying offer of employment was submitted, then USCIS must issue a Notice of Intent to Deny the pending I-485.

However, the ombudsman understands that USCIS may deny the I-485 in cases of portability (the ability to change jobs) before first issuing a Notice of Intent to Deny in certain limited circumstances. These include, for example, where the beneficiary is ineligible for the benefits of the I-485 by statute, or the I-140 is withdrawn before the I-485 was pending for 180 days.

USCIS’s ombudsman asks that those who think their cases may have been denied erroneously to forward the ombudsman a case problem using Department of Homeland Security Form 7001 (http://www.dhs.gov/files/programs/editorial_0497.shtm) with the subject line, “AC21 Evidence of Immediate Denial.” The complainant should include a copy of the denial notice, detailed information on the reasons for the immediate denial and, if appropriate, evidence that a Motion to Reopen or Reconsider was submitted. If the ombudsman’s office considers the case to be an erroneous denial, it will forward the case directly to USCIS for further review.

For more information, see http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#2.

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5. USCIS Ombudsman Discusses Pending Derivative I-485s Due to File Separation

U.S. Citizenship and Immigration Services (USCIS) sometimes approves a Form I-485 (Application to Register Permanent Residence or Adjust Status) for a principal applicant, but the derivative family members’ (spouse or minor children) I-485 applications remain pending. While in some cases this may be due to missing evidence, security clearance difficulties, or some other legitimate reason, the file may just be separated from the principal’s, the USCIS ombudsman noted recently.

If a family member’s derivative adjustment of status application has been pending in excess of 30 days from the approval date of the principal applicant’s I-485, the ombudsman asks that the following be e-mailed to [email protected]:

• DHS Form 7001;
• A copy of the principal applicant’s I-485 approval notice;
• A copy of the I-485 receipt notice for the derivative;
• A copy of the approved immigrant visa petition notice (if employment-based); and
• Any other evidence that is pertinent to the case.

The subject line of the e-mail should include: “Unapproved Derivative I-485.”

The ombudsman said it will look into such cases “and review how we may be of assistance.”

The notice is available at http://www.dhs.gov/xabout/structure/gc_1221837986181.shtm#1.

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6. State Dept. Withdraws Proposed Rule on Secondary School Students Under Exchange Visitor Program

On December 23, 2009, the State Department published a proposed rule on secondary school students under the Exchange Visitor Program. The Department revised existing regulations “to provide greater specificity and clarity to sponsors of the Secondary School Student category with respect to the execution of sponsor oversight responsibilities under the exchange visitor program.” The Department subsequently withdrew the rule in its entirety on December 29, 2009, because it was submitted before the Office of Management and Budget completed its review.

The notice is at http://edocket.access.gpo.gov/2009/pdf/E9-30837.pdf.

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7. Labor Dept. Announces Centralization of Prevailing Wage Determinations

As of January 1, 2010, the Department of Labor’s Office of Foreign Labor Certification’s National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, DC, began receiving and processing prevailing wage determination requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs. The notice also includes information about processing CNMI prevailing wage determinations. For the time being the NPWHC will only process prevailing wage determination requests received by mail in hard copy. The Department said it is developing an electronic means for the submission of such requests.

The notice is available at http://www.foreignlaborcert.doleta.gov/pdf/E928963_120409.pdf.

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8. State Dept. Proposes Increase in Nonimmigrant Visa Application, BCC Fees

The Department of State published a proposed rule on December 14, 2009, to increase nonimmigrant visa application processing and Border Crossing Card (BCC) fees. Under the proposed rule:

• Applicants for all visas that are not petition-based, including B-1/B-2 tourist and business visitor visas and student/exchange visitor visas, would pay $140
• Applicants for petition-based visas (H, L, O, P, Q, R) would pay $150
• Applicants for treaty traders and investors (E) would pay $390
• Applicants for K visas would pay $350
• Applicants for nonpetition-based machine-readable visas (except E category) and BCC applications, with the exception of certain Mexican citizen minors’ BCCs, would pay $140

The press release is available at http://www.travel.state.gov/news/press/press_4603.html. The proposed rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-29722.pdf.

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9. CNMI Update: Advance Parole, Biometrics/Interviews

U.S. Citizenship and Immigration Services (USCIS) reminds noncitizens living in the Commonwealth of the Northern Mariana Islands (CNMI) to apply for advance parole before traveling abroad if they do not otherwise have U.S. lawful permanent resident status or an “appropriate” U.S. visa (not a visa for “B” visitor admission or under the Visa Waiver Program only). Advance parole allows people lawfully living and working in the CNMI to continue to do so when they return from foreign travel. It will also allow processing of a pending application for adjustment of status to that of lawful permanent resident to continue.

USCIS also notes that those living and/or working or studying in the CNMI under CNMI permits should request parole before seeking to travel to Guam and other parts of the U.S. People who entered before November 28, 2009, are present without admission or parole. Although they are entitled to lawfully remain and work in the CNMI to the extent they were authorized to do so under former CNMI law as of November 28, 2009, for up to two years after that date, they will need a grant of parole to continue to live, work, and/or study in the CNMI during this period after travel to another U.S. destination.

USCIS advises applicants for immigration benefits in the CNMI who live in Rota or Tinian that appointments for biometrics and interviews have been combined into one. USCIS did this to minimize the expense people face in traveling to Saipan twice for separate biometrics appointment and interview. If an applicant in Rota or Tinian who is awaiting an interview receives a notice of a biometrics appointment, he or she can ignore that notice and have the fingerprints and photograph taken the day of the interview.

Details on advance parole for CNMI workers are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=44c2f4668d895210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD andhttp://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=6a71f4668d895210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A technical correction to the CNMI interim rule (adding the edition date and OMB Control Number for the new Form I–9 CNMI, “CNMI Employment Eligibility Verification”) is available at http://edocket.access.gpo.gov/2009/pdf/E9-30287.pdf.

Information about the issuance of prevailing wage determinations for use in the CNMI is available at http://www.foreignlaborcert.doleta.gov/pdf/E928963_120409.pdf.

For more information about immigration benefits or to check the status of an application, USCIS suggests visiting http://www.uscis.gov/cnmi; calling USCIS Customer Service at 1-800-375-5283; or making an appointment via the Web site to visit the USCIS office at TSL Plaza in Saipan.

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10. New Publications and Items of Interest

Global Workforce Impact Survey. Western Union and The Economist have published the “Western Union Global Workforce Impact Survey.” The report notes that nearly one out of six people worldwide has migrated, representing a vast mobile workforce. This includes 740 million who are traveling within their own country, and 200 million who are moving across international borders.1 With more people on the move, the report says, international migration is increasingly recognized as central to economic vitality and global competitiveness. Varying immigration laws among countries often limit a company’s ability to hire the necessary talent, the report notes: “With an eye fixed on the future, businesses increasingly see open immigration policies as enabling them to expand quickly when the economy turns around.” The report calls for policymakers to address these business needs by developing flexible immigration policies that minimize the barriers to mobility and address concerns about the impact of foreign workers on domestic wages, working conditions, and opportunities. The survey of 501 senior executives was designed to provide new insight into business attitudes and practices toward cross-border workforce supplies. More than three out of four (76 percent) respondents believe that foreign workers have a positive impact on the economy. See http://corporate.westernunion.com/global_migration.html.
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11. Recent News from ABIL Members

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) has posted “The New Immigration Reform Bill – And An American Hero” on his blog, available at http://www.immigration.net/Blog/?m=200912. The blog discusses Rep. Luis Gutierrez and his proposed new legislation, “Comprehensive Immigration Reform for America’s Security and Prosperity Act of 2009.”

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) recently debated Mark Krikorian, Center for Immigration Studies, on Southern California Public Radio. Mr. Paparelli suggested that the President should use executive authority to grant work permits and thereby take Congress off the hot seat on immigration as it faces midterm elections. Mr. Krikorian said the President had such authority but that he would be impeached if he tried that. Mr. Paparelli does not believe impeachment is likely. To hear the program, go to http://www.scpr.org/programs/patt-morrison/2009/12/29/is-obama-tougher-on-immigration-than-bush/.

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) spoke at a recent “off-the-record” roundtable at the Center for American Progress (CAP). CAP’s head of immigration issues, Marshall Fitz, wrote a paper suggesting ways to improve high-skilled immigration that was used as a backgrounder for the roundtable. The paper, “Prosperous Immigrants, Prosperous Americans: How to Welcome the World’s Best Educated, Boost Economic Growth, and Create Jobs,” was released in December 2009 and is available at http://www.americanprogress.org/issues/2009/12/pdf/highskilled_immigrants.pdf.

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12. 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. ICE Workplace Audits Stepped Up – ICE has stepped up audits of companies’ hiring records to determine compliance with employment eligibility verification laws.

2. USCIS Updates H-1B FY 2010 Cap Count – The recent pace of filings suggests that H-1B numbers may be exhausted for this fiscal year very soon.

3. SEVP Announces New Mailing Address, Phone Number – The Student and Exchange Visitor Program office has a new mailing address.

4. NEXUS Frequent Border Crossing Enrollment Center Moves – The center has moved from International Falls, Minnesota, to Fort Frances, Ontario, Canada.

5. Northern Mariana Islands Transition to U.S. Immigration Law; Guam Also Affected – Although U.S. immigration law now applies to the Marianas, they will undergo a transition period with temporary measures ending December 31, 2014, to allow for an orderly transition.

6. ABIL Global: Long Stay Business Visas in Australia – The Long Stay Visa enables the holder to live and work in Australia for a period of up to four years.

7. Government Agency Links – Government Agency Links

Details:

1. ICE Workplace Audits Stepped Up

U.S. Immigration and Customs Enforcement (ICE) Assistant Secretary John Morton announced on November 19, 2009, the issuance of Notices of Inspection (NOIs) to approximately 1,000 employers across the U.S. associated with critical infrastructure, alerting business owners that ICE will audit their hiring records to determine compliance with employment eligibility verification laws.

The businesses served with audit notices were selected for inspection, ICE said, “as a result of investigative leads and intelligence and because of the business’ connection to public safety and national security — for example, privately owned critical infrastructure and key resources.” The names and locations of the businesses were not released “due to the ongoing, law enforcement sensitive nature of these audits.”

Audits involve a comprehensive review of Forms I-9 (Employment Eligibility Verification). Audits may result in civil penalties and lay the groundwork for criminal prosecution of employers who knowingly violate the law. ICE identified I-9 audits as “the most important administrative tool in building criminal cases and bringing employers into compliance with the law.”

Statistics resulting from 654 audits announced in July included:

• ICE agents reviewed more than 85,000 Form I-9s and identified more than 14,000 suspect documents, which was approximately 16 percent of the total number reviewed.
• As of November 19, 2009, 61 NIFs have been issued, resulting in $2,310,255 in fines. In addition, 267 cases are being considered for NIFs.
• ICE closed 326 cases after businesses were found to be in compliance with employment laws or after businesses were served with a Warning Notice in expectation of future compliance.

The Alliance of Business Immigration Lawyers (ABIL) notes that some clients are reporting receipt of subpoenas for wage and related records. Relying on inexperienced counsel and self-audits is no longer sufficient. Contact your ABIL member for guidance in particular cases, including conducting proactive pre-audits.

The ICE announcement is at http://www.ice.gov/pi/nr/0911/091119washingtondc2.htm.

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2. USCIS Updates H-1B FY 2010 Cap Count

As of November 20, 2009, approximately 56,900 H-1B cap-subject petitions had been filed, U.S. Citizenship and Immigration Services (USCIS) announced. USCIS has approved sufficient H-1B petitions for those with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of a worker with an advanced degree will now count toward the general H-1B cap of 65,000.

USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions has been received to reach the statutory limit, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

The recent pace of filings suggests that H-1B numbers may be exhausted for this fiscal year very soon. After that, employers will be left with limited alternatives for hiring skilled foreign nationals when U.S. workers are unavailable until filings for the next fiscal year can be made.

For details, see http://www.uscis.gov/h-1b_count.

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3. SEVP Announces New Mailing Address, Phone Number

The Student and Exchange Visitor Program office has a new mailing address. All correspondence should be mailed to: Student and Exchange Visitor Program, Attn: (Branch Name or Job Title), SEVP MS 5600, DHS/ICE, 500 12th Street, SW; Washington, DC 20598-5600. The new main telephone number is (703) 603-3400. E-mail addresses have not changed, so inquiries may be sent to SEVP via its previous e-mail address or via [email protected]. Also, the ICE Web site (http://www.ice.gov) layout has been updated, including the SEVP pages.

For a “faster resolution and response,” SEVP recommends the following:

• For I-901 fee questions, payment issues, transfer fee issues, and chargeback issues, visit the I-901 section of the SEVP Web site (http://www.ice.gov/sevis/i901/index.htm), then e-mail [email protected].
• For I-515A issues, visit the I-515A Tool Kit on the SEVP Web site (http://www.ice.gov/doclib/sevis/pdf/I515A%20tool%20kit.pdf) for quick tips, or e-mail [email protected] to ask about documents.

The announcement is available at http://www.ice.gov/sevis/.

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4. NEXUS Frequent Border Crossing Enrollment Center Moves

U.S. Customs and Border Protection announced that the enrollment center for U.S. Customs and Border Protection’s frequent border crossing program (NEXUS) moved on November 30, 2009, from International Falls, Minnesota, to Fort Frances, Ontario, Canada.

The NEXUS Enrollment Center is now located at 301 Scott Street, Fort Frances, Ontario, Canada P9A 1H1. The hours of operation are Monday and Wednesday, 9 a.m. to 4 p.m., and Thursday, 11 a.m. to 7 p.m.

The NEXUS program allows pre-screened, low-risk travelers to be processed with less delay by U.S. and Canadian officials at designated highway lanes at high-volume border crossing locations. Approved applicants are issued a photo identification/proximity card. Participants present their NEXUS card and make a declaration. They are then released, unless chosen for a more stringent inspection.

Both the U.S. and Canada must approve an individual’s application. Denial of an application by either country will prevent an individual from participating in the NEXUS program. NEXUS is a binational program and applicants need to complete only a single application form, which can be filled out online, mailed, or faxed.

Qualified applicants are required to come to a NEXUS Enrollment Center for an interview. Interviews can be scheduled online using the Global Online Enrollment system located on the NEXUS Web site (http://www.cbp.gov/xp/cgov/travel/trusted_traveler/nexus_prog/).

The announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/11242009_9.xml.

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5. Northern Mariana Islands Transition to U.S. Immigration Law; Guam Also Affected

On November 28, 2009, the Commonwealth of the Northern Mariana Islands (CNMI) transitioned to U.S. immigration law under the Consolidated Natural Resources Act of 2008 (CNRA). Although U.S. immigration law now applies to the CNMI, it will undergo a transition period with temporary measures ending December 31, 2014, to allow for an orderly transition and give individuals time to identify an appropriate visa classification, U.S. Immigration and Customs Enforcement (ICE) announced.

Recognizing that some unique situations would result as the CNMI transitions to U.S. immigration law, ICE said that the Department of Homeland Security may grant parole to applicants for admission on a case-by-case basis for urgent humanitarian reasons or significant public benefit.

Parole authority will be used in two specific situations in the CNMI: eligible Chinese and Russian nationals visiting for business or pleasure will be eligible for U.S. Customs and Border Protection (CBP)-administered parole into the CNMI on a case-by-case basis, and certain affected people, including CNMI permanent residents and various categories of immediate relatives, will be eligible for parole on a case-by-case basis.

CBP has begun inspecting all passengers arriving at CNMI airports on flights from outside the U.S. CNMI authorities will continue to conduct customs inspections.

Additional information is available at http://www.ice.gov/pi/nr/0911/091127washingtondc.htm and http://www.ice.gov/doclib/pi/news/factsheets/cnmi_fact_sheet.pdf.

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6. ABIL Global: Long Stay Business Visas in Australia

The most common visa used to transfer corporate employees to Australia is the Subclass 457 Business (Long Stay) Visa. If granted, the visa enables the visa holder to live and work in Australia for a period of up to four years. Family members are included in the visa grant. Spouses have full work rights.

There are essentially three applications to be made: the Sponsorship, the Nomination, and the Visa Application.

The Sponsorship Application is made by the prospective Australian employer to be approved as a Sponsor. In brief, an Applicant for Sponsorship is required to establish that it has been lawfully operating a business in Australia. In certain circumstances, overseas businesses that do not trade in Australia are also entitled to apply for sponsorship. The business must demonstrate a strong record of, or commitment to, local recruitment. Training benchmarks also must be met. If granted, the sponsorship approval is valid for three years.

The approved Sponsor then makes a Nomination Application, or Applications, depending upon the number of positions to be filled by the prospective employee or employees. Only certain positions may be nominated and recent amendments have imposed stringent requirements on the salary levels and conditions of employment that are proposed to be offered to the employee. In essence, the employee should not be employed at a lesser salary or subject to less favorable terms of employment than an Australian hire and the base salary must be equal to or exceed the Temporary Skilled Migration Income Threshold.

If a Nomination Application is approved, the employee is then entitled to file a Visa Application. In certain circumstances, the employee will be required to meet specified English language standards.

In practice, all three applications are electronically filed simultaneously. In most cases, the employee is entitled to be in Australia at the time of application.

It should be stressed that there are substantial complexities to this subclass of visa that are beyond the scope of this brief overview.

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7. Government Agency Links

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

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

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

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

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Headlines:

1. Congress Extends Four Immigration Programs for Three Years – The non-minister religious worker, “Conrad 30,” EB-5 immigrant investor pilot, and E-Verify programs are extended for three years, until September 30, 2012.

2. USCIS Ombudsman Recommends Temporary Acceptance of Filed LCAs for Certain H-1B Filings – The USCIS ombudsman made several recommendations in light of LCA processing delays and errors at DOL, coupled with USCIS’s current H-1B petition initial filing requirements.

3. USCIS, EOIR Issue Interim Final Rule Implementing Extension of U.S. Immigration Laws to Northern Marianas – The interim final rule amends the regulations governing, among other things, classifications authorized for employment.

4. ABIL Global: New Indian Immigration Regime – New stipulations will have a significant impact on foreign nationals wanting to visit India on short-term assignments.

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

6. Recent News from ABIL Members – Recent News from ABIL Members

7. Government Agency Links – Government Agency Links

Details:

1. Congress Extends Four Immigration Programs for Three Years

On October 28, 2009, President Obama signed into law the fiscal year 2010 appropriations bill for the Department of Homeland Security.

The law (Pub. L. No. 111-83) extends four immigration programs: (1) the non-minister religious worker program (section 568 of the law), the “Conrad 30” program for certain foreign doctors (section 568), the EB-5 immigrant investor pilot program (section 548), and the E-Verify program for electronic verification of workers’ eligibility (section 547). All four programs are extended for three years, until September 30, 2012.

The new law also includes statutory authority for U.S. Citizenship and Immigration Services to complete processing of permanent residence applications for surviving spouses and other relatives of immigration sponsors who die during the adjudication process (section 568).

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2. USCIS Ombudsman Recommends Temporary Acceptance of Filed LCAs for Certain H-1B Filings

In August and September 2009, the ombudsman for U.S. Citizenship and Immigration Services (USCIS) received complaints concerning H-1B cases with incorrectly denied labor condition applications (LCA/ETA-9035) filed with the U.S. Department of Labor (DOL). The ombudsman said that LCA processing delays and errors at DOL, coupled with USCIS’s current H-1B petition initial filing requirements, “are prejudicing employers and individuals who are unable to timely file original or extension H-1B visa petitions.” Untimely H-1B petition filings lead to several problems, the ombudsman noted, including: (1) the potential loss of employees’ legal status; (2) business operation disruptions due to the loss of continuity in the employment of key employees; and (3) economic loss to employees in the form of lost wages and costs of travel overseas due to loss of status.

Stakeholders have detailed to the ombudsman errors stemming from the new DOL LCA certification process, iCERT, launched on April 15, 2009. For example, the ombudsman noted, DOL is denying LCAs based on false FEIN (Federal Employer Identification Number) mismatches with DOL’s database. The ombudsman said that cases involving LCA certification problems represent up to seven percent of total iCERT filings from April 15, 2009, through the beginning of August 2009 (approximately 2,900 denials out of approximately 41,700 LCAs submitted).

The ombudsman noted that despite DOL’s jurisdictional ownership of H-1B-related LCA processing problems, these difficulties extend to USCIS through the agency’s requirement that petition filings include certified LCAs. “Any costs to USCIS[,] such as issuing RFEs or temporarily lowering production levels, are outweighed by the burden that incorrect denials have on employers and individuals,” the ombudsman said. “USCIS currently has the capacity to make what amounts to a minor processing modification to address a temporary situation.”

To mitigate the impact of LCA processing difficulties, the ombudsman recommends that USCIS:

(1) reinstate the agency’s previous practice of temporarily accepting an H-1B petition (Form I-129) supported by proof of timely filing of an LCA application with DOL, and issue a Request for Evidence (RFE) whereby the H-1B petitioner later provides the certified LCA; and

(2) establish a temporary policy under which the agency would excuse late H-1B filings where the petitioner has documented an LCA submission to DOL that was improperly rejected.

The report is available at http://www.dhs.gov/xlibrary/assets/cisomb_recommendation_43_LCAs_October_2009.pdf. USCIS officials have not responded yet to the ombudsman’s recommendations.

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3. USCIS, EOIR Issue Interim Final Rule Implementing Extension of U.S. Immigration Laws to Northern Marianas

U.S. Citizenship and Immigration Services and the Executive Office for Immigration Review issued an interim final rule effective November 28, 2009, implementing the extension of U.S. immigration laws to the Commonwealth of the Northern Mariana Islands (CNMI) under the Consolidated Natural Resources Act of 2008 (CNRA). The rule amends the regulations governing, among other things, references to the geographical “United States” and its territories and possessions; classifications authorized for employment; acceptable documents for employment eligibility verification; employment of undocumented workers; and adjustment of status of immediate relatives admitted under the Guam-CNMI Visa Waiver Program. The stated purpose of the rule is “to ensure that the regulations apply to persons and entities arriving in or physically present in the CNMI to the extent authorized by the CNRA.”

USCIS has established a transitional worker program for foreign nationals to live and work in CNMI. For more information, see http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/2009%20Press%20Releases/Oct%202009/cmni_qa_26oct09.pdf.

Written comments should be submitted by November 27, 2009, according to the instructions in the interim rule, which was published in the Federal Register on October 28, 2009, and is available at http://edocket.access.gpo.gov/2009/pdf/E9-26094.pdf.

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4. ABIL Global: New Indian Immigration Regime

Recently, the Indian Ministry of Commerce and Industry (MCI) announced that business visas cannot be granted to foreign nationals to work on projects or specific contracts in India. The formal announcement also requires all foreign nationals on such visas to leave India and return on employment visas. Initially they were required to leave before the end of September 30, 2009, but the Ministry of Home Affairs (MHA) extended the deadline to October 31, 2009. Individuals who are in India on business visas in connection with investments, joint ventures, or buying and selling industrial products can continue to remain in the country. Both government communications also state that in the future, business visas will only be issued for activities specified in their circulars. However, because the circulars were rather ambiguous, the Ministry of Home Affairs published a set of frequently asked questions on October 29, 2009. These provide some clarity but have not resolved all ambiguities.

These new stipulations will have a significant impact on foreign nationals wanting to visit India on short-term assignments. Per the announcement, these individuals will now require an employment visa as opposed to a short-term business visa. Further, the issuance of a business or employment visa will continue to depend upon the discretion of the consular officer. The change in the visa category would definitely have tax and social security ramifications for the foreign nationals and their employers during their stay in India. Additionally, these changes may also generate corporate tax ramifications in rare cases, depending on the nature of the individual’s activities in India.

Companies seeking to assign foreign nationals to India on a short-term basis should assess their projects to identify and comply with visa requirements. Companies should also review these short-term projects for compliance with the tax (individual and corporate) structure in India. In the interim, companies seeking to assign foreign nationals should conform to the new regime. It is expected that the outcome of a business or employment visa, which will be based on evidence submitted at the time of application, will be subject to severe scrutiny to determine the caliber of the applicant and the nature of the job in India.

A longer version of this article is available at https://www.abil.com/global_immigration_articles.cfm?country_id=17.

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5. New Publications and Items of Interest

Temporary worker visas. Immigration Works USA has issued a policy brief, “Reduced Access: New Regulations Aimed at Temporary Worker Visas.” The report notes that this has been a difficult year for businesses that rely on foreign workers. Both Congress and the new administration imposed restrictions on several widely used visa categories. The Department of Homeland Security made employers the target of a new immigration enforcement strategy likely to result in dramatically increased criminal prosecutions. As the downturn drags on, the report notes, the public is increasingly skeptical that employers need immigrant workers, and additional threats loom on the horizon: legislation pending in the Senate could reduce employers’ access to highly skilled workers, and lawmakers in the House of Representatives are working on a bill that could do the same for seasonal workers. The report looks at new developments for H-2A agricultural workers, H-2B seasonal workers, worksite enforcement and I-9 audits, and H-1B and L-1 professionals. An appendix includes a memo on worksite enforcement from U.S.

Immigration and Customs Enforcement. The report is available at http://www.immigrationworksusa.org/uploaded/file/IW_visa_policy_brief.pdf.

USCIS H-1B compliance site visit instructions. This document is intended to assist U.S. Citizenship and Immigration Service site inspectors when conducting a site audit of a business for H-1B compliance. See http://www.aila.org/content/fileviewer.aspx?docid=30298&linkid=210517.

Immigration in the labor market. The Migration Policy Institute (MPI) recently launched its Labor Markets Initiative, a comprehensive, policy-focused review of the role of immigration in the labor market. The initiative will produce detailed policy recommendations on how the United States should rethink its immigration policy in light of what is known about the economic impact of immigration, bearing in mind growing income inequality, concerns about the effect of globalization on U.S. competitiveness, the competition for highly skilled migrants, and demographic and technological change. The initiative is guided by a group of leading experts in labor economics, welfare policy, and immigration. See http://www.migrationpolicy.org/lmi/.

Various reports. New reports from MPI:

“Immigrants and Health Care Reform: What’s Really At Stake?” (http://www.migrationpolicy.org/pubs/healthcare-Oct09.pdf)

“Aligning Temporary Immigration Visas With U.S. Labor Market Needs: The Case for Provisional Visas” (http://www.migrationpolicy.org/pubs/Provisional_visas.pdf)

“The Next Generation of E-Verify: Getting Employment Verification Right” (http://www.migrationpolicy.org/pubs/Verification_paper-071709.pdf)

“Harnessing the Advantages of Immigration for a 21st Century Economy” (http://www.migrationpolicy.org/pubs/StandingCommission_May09.pdf)

“Uneven Progress: The Employment Pathways of Skilled Immigrants in the United States” (http://www.migrationpolicy.org/pubs/BrainWasteOct08.pdf)

“Managing Temporary Migration: Lessons From the Philippine Model” (http://www.migrationinformation.org/datahub/statelaws_home.cfm)

“New Data Guide on Finding, Using the Most Accurate, Recent Immigration Data Resources” (http://www.migrationpolicy.org/pubs/2008DataGuide.pdf)

“State Responses to Immigration: A Database of All State Legislation” (http://www.migrationinformation.org/datahub/statelaws_home.cfm)

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6. Recent News from ABIL Members

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) argues in his recent blog posting, “BALCA – Your PERM Case Is Denied!,” that “PERM is a blight on our immigration system. It does not protect American workers in any serious way, it asks employers to jump through more hoops than a show dog, and puts lawyers in the unenviable positions of advising employers on how to navigate a set of non-real world regulations, FAQs, and liaison minutes (when we can actually get answers), using a poorly developed computer filing program so complex that Einstein would have to invent a new Theory of PERM Relativity to explain it to a layman!” See more on this and other topics at http://www.immigration.net/blog/. Mr. Kuck also recently blogged on employment-based immigrant visa delays. See http://ailaleadership.blogspot.com/2009/10/get-in-line-what-line-tragic-tale-of.html.

Sharon Mehlman (bio: https://www.abil.com/lawyers/lawyers-mehlman.cfm) spoke on a panel at the Practising Law Institute’s conference in New York on October 13, 2009. The panel topic was a USCIS update.

Julie Pearl (bio: https://www.abil.com/lawyers/lawyers-pearl.cfm) was quoted in the October 29, 2009, edition of the Wall Street Journal. She noted that at least a third of her clients have cut down on their hiring of H-1B workers as compared to a year ago. “Most companies just aren’t hiring as many people in general,” Ms. Pearl said.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) spoke on Ethics in Immigration Practice at the Practising Law Institute’s 2009 PLI Immigration Program in New York City on October 14, 2009. Mr. Mehta also was a discussion leader at the American Immigration Lawyers Association’s “Interactive Workshop on Advanced Business Issues,” held at AILA’s 2009 Fall Conference in Pittsburg, Pennsylvania, on October 2, 2009.

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7. Government Agency Links

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

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

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

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

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