Headlines:

1. USCIS Says Fees May Rise – A decline in revenue from a decrease in applications could lead to higher application fees.

2. Labor Dept. Issues FAQ on LCAs – The Department issued a FAQ about the new iCERT Portal and the newly redesigned ETA Forms 9035 and 9035E.

3. ABIL Alert: Be Prepared for Surprise Enforcement Site Visits – Employers should prepare for unannounced, random immigration-related worksite inspections.

4. USCIS Announces New Web Site Design – USCIS says its redesigned Web site, in English and Spanish, is more customer-centric.

5. Interim EADs Issued to Salvadorans – Interim work authorization documents will be issued to Salvadoran TPS beneficiaries who have not yet received a final action on re-registration applications that have been pending for more than 90 days.

6. Global Entry Program Now Available at Detroit Airport – Global Entry allows pre-screened, approved, registered travelers to use automated kiosks to receive expedited processing upon arrival.

7. Missouri Plant Pays $450K Fine for Hiring Undocumented Workers – A Missouri poultry-processing plant where 136 undocumented workers were arrested in 2007 recently paid a $450,000 administrative fine as a result of a worksite enforcement investigation.

8. ABIL Global: Turkish Immigration – AMS Visas – An AMS visa is applicable to many categories of “assembly and maintenance” work, including computer software and hardware, complex machinery, energy equipment, manufacturing equipment and more.

9. Publications and Items of Interest – 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 Says Fees May Rise

Alejandro Mayorkas, the new director of U.S. Citizenship and Immigration Services, said recently that the agency has received a significantly lower number of applications lately and that the resulting decline in revenue could lead to higher application fees. At a press conference in Albuquerque, New Mexico, on September 24, 2009, Mr. Mayorkas said there is a $118 million budget shortfall and that he has asked for Congress’s help. “The potential fee increase is not something that is taken lightly. We understand very well its impact upon the community. In my personal view, it would be something of [a] last resort.”

Mary Giovagnoli, director of the Immigration Policy Center, noted that an increase in fees could result in even fewer applicants. “Congress has been really reluctant to revisit this whole idea that we shouldn’t be trying to finance our immigration system basically solely on the backs of applicants. I think the agency and the applicants are both kind of caught between a rock and [a] hard place.”

Fee increases were imposed two years ago, but a budget gap remains. For more on the drop in applications and its effect on USCIS’s budget, see http://www.abqjournal.com/news/state/apimmigrationfees09-14-09.htm. A news article about Mr. Mayorkas’ press conference is posted at http://www.abqjournal.com/news/state/apimmigfeesmayorkas109-24-09.htm. A USCIS Q&A on paying immigration fees and what types of payment are accepted is available at http://www.uscis.gov/files/article/Check_Instructions.pdf. For more guidance on how to pay immigration fees, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3850a99ba78af110VgnVCM1000004718190aRCRD&vgnextchannel=7d316c0b4c3bf110VgnVCM1000004718190aRCRD.

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2. Labor Dept. Issues FAQ on LCAs

The Department of Labor recently issued frequently asked questions (FAQ) about the new iCERT Portal and the newly redesigned ETA Forms 9035 and 9035E. Topics discussed include how to correct an invalid federal employer identification number after denial of a labor condition application (LCA) on that ground; filing on behalf of a new company created through a merger, acquisition, or sale; what contact information to enter for employer point of contact; how to enter a prevailing wage survey on the new LCA; and how to withdraw an LCA after receiving certification via the iCERT Portal.

The FAQ is available at http://www.foreignlaborcert.doleta.gov/pdf/FAQ_iCERT_090909_%20FINAL_Elissa_090909.pdf. A press release is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/FY%2009/September%202009/website_redesign.pdf.

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3. ABIL Alert: Be Prepared for Surprise Enforcement Site Visits

As part of the Department of Homeland Security’s stepped-up enforcement efforts that include increased audits of businesses to detect immigration and labor law violations, employers are reporting random, unannounced visits by the Fraud Detection and National Security Division (FDNS) of U.S. Citizenship and Immigration Services. FDNS inspectors often use a script of questions and ask to speak with an employer representative and any foreign workers. FDNS is also using what it learns to add fraud indicators to its database in an effort to identify patterns and potential fraud during adjudications.

The Alliance of Business Immigration Lawyers (ABIL) recommends that employers prepare for immigration-related worksite inspections by developing and implementing robust compliance policies, auditing their I-9s and H-1B public access files, and planning in advance how to respond when immigration agents visit. ABIL recommends designating an immigration compliance officer, who should contact immigration counsel immediately upon an FDNS site visit, and implementing an investigation response plan in advance that includes everyone from upper management to receptionists. Contact your ABIL attorney for help in preparing for potential onsite FDNS inspections.

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4. USCIS Announces New Web Site Design

U.S. Citizenship and Immigration Services (USCIS) says its redesigned Web site, in English and Spanish, is more customer-centric, providing users with a “one-stop shop” for immigration services and information.

Before the redesign, users described the USCIS Web site as “frustrating” and “hard to navigate.” The new “Where to Start” tool, located on the top left of the homepage, allows for direct navigation to information.

By clicking on the first drop-down menu, users have the opportunity to choose who they are from a number of options. After selecting who they are, clicking on the second drop-down menu allows them to select what they want to do.

USCIS says the “Where to Start” tool will take users to the information they want without having to search the entire site. Applicants for citizenship may also follow the progress of their cases online, and receive notifications via e-mail or text messages when their application status changes.

The USCIS Web site is at http://www.uscis.gov/portal/site/uscis. A related fact sheet is available at http://www.uscis.gov/USCIS/New%20Structure/Press%20Releases/FY%2009/September%202009/Where%20to%20Start%20Fact%20Sheet_ckn%2016Sept09.pdf.

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5. Interim EADs Issued to Salvadorans

USCIS announced that interim Employment Authorization Documents (EADs) will be issued to Salvadoran temporary protected status (TPS) beneficiaries who have not yet received a final action on their re-registration applications and whose re-registration applications have been pending for more than 90 days.

Initially, the expiration date for Salvadoran EADs was March 9, 2009. USCIS automatically extended the EAD validity period to September 9, 2009. USCIS said that issuance of the interim EADs will allow TPS beneficiaries to continue working while the agency completes processing of their re-registration applications.

USCIS said it has already processed over 99.5 percent of the Salvadoran re-registration applications for the current TPS designation period ending September 9, 2010. This includes a substantial number of re-registration applications filed after the re-registration period closed. A small number of pending re-registration applications are still under review by USCIS and awaiting further information from the applicants.

Any applicant who receives an interim EAD must still respond to any USCIS requests, including for additional evidence, documents, or biometric/fingerprint appointments. To maintain employment authorization through September 9, 2010, an applicant had to respond to any USCIS requests and resolve all issues so that a new EAD could be provided.

For more information, see http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=5de2eb7cf98c3210VgnVCM100000b92ca60aRCRD&vgnextchannel=a2dd6d26d17df110VgnVCM1000004718190aRCRD.

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6. Global Entry Program Now Available at Detroit Airport

Global Entry, U.S. Customs and Border Protection’s (CBP) new clearance system for international air passengers, is now open at Detroit Metropolitan International Airport.

Global Entry allows pre-screened, approved, registered travelers (including U.S. citizens, lawful permanent residents of the U.S. and citizens of certain other countries) to use automated kiosks to receive expedited processing upon arrival at Detroit Metropolitan Airport.

Global Entry participation is voluntary. Participants must possess a machine-readable U.S. passport or permanent resident card, pay a non-refundable $100 application fee, submit an online application, and complete an interview at a CBP enrollment center.

“Detroit is a major international gateway, especially for flights from Asia and Europe, as well as a hub airport for Delta, the world’s largest airline,” said airport authority CEO Lester Robinson. “We treasure our international passengers and this added convenience provided by [CBP] is one more customer service we can highlight when marketing our airport and our region.”

Global Entry is now available at Miami, Atlanta, Los Angeles, Chicago, Sea-Tac, Dallas, Newark, San Francisco, Boston, Orlando, Honolulu, Las Vegas, Orland-Sanford, Philadelphia, San Juan and Fort Lauderdale, as well as Detroit.

The Detroit announcement is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/09182009_4.xml. Additional information on the Global Entry program (including enrollment application) is available at http://www.cbp.gov/xp/cgov/travel/trusted_traveler/global_entry/.

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7. Missouri Plant Pays $450K Fine for Hiring Undocumented Workers

A Missouri poultry-processing plant where 136 undocumented workers were arrested in 2007 recently paid a $450,000 administrative fine as a result of a worksite enforcement investigation conducted by U.S. Immigration and Customs Enforcement (ICE). George’s Processing, Inc., paid the fine on September 11, 2009, as part of a settlement agreement.

ICE said it will use the funds to promote future law enforcement programs and activities in worksite enforcement. During a May 2007 enforcement action at the George’s plant in Cassville, Missouri, ICE agents administratively arrested 136 undocumented workers from Mexico and Guatemala. Twenty-eight of those workers were criminally prosecuted for various immigration violations, including falsely claiming U.S. citizenship. Two of the company’s hiring personnel subsequently were convicted of harboring undocumented workers and inducing them to remain in the United States.

George’s Processing, Inc., headquartered in Springdale, Arkansas, employs 4,000 workers at its three poultry processing facilities in Arkansas, Missouri, and Virginia.

The USCIS announcement is available at http://www.ice.gov/pi/nr/0909/090915springfield.htm.

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8. ABIL Global: Turkish Immigration – AMS Visas

Hans is a software technician working for Finance Software, GmbH, which produces highly specialized banking software products. Finance Software has signed a major contract to produce, install, and customize its software for a Turkish bank. Because the software products are very complex and must be customized on site, Hans must spend several months in Turkey for installation work. Does Hans need a work permit in Turkey? Fortunately not, but instead he will need to obtain an Assembly and Maintenance Service (AMS) visa.

Under Turkish immigration law, under certain conditions a work permit is not needed if an employee of a foreign entity engages in assembly and maintenance service work in Turkey for the benefit of a receiving Turkish company if the equipment subject to maintenance and installation services was imported to Turkey. An AMS visa is applicable to many categories of “assembly and maintenance” work, including computer software and hardware, complex machinery, energy equipment, manufacturing equipment and more, as evaluated on a case-by-case basis. Obtaining such a visa should be attempted whenever feasible given the difficulty and length of time it takes to obtain a work permit.

Documents required for filing an AMS visa application at a consular post vary somewhat from post to post, but generally include a petition, an invitation letter from the Turkish company, a sending employer letter, a visa application form, and ID photos. Additional documents requested by the post often may include a round-trip ticket, several months of the applicant’s personal bank account records, the applicant’s personal tax records, a diploma, and insurance coverage in Turkey. In the event that either the employing company or the customer company is not well known, the consular post may require additional documents regarding the companies.

An AMS visa generally is issued for up to 90 days. While working in Turkey pursuant to an AMS visa, employees should continue to be paid by the foreign entity that sent them. An AMS visa allows the employees to work only in the designated locality for the Turkish company, as designated within the scope of the visa. Although the application considers a request for a single or multiple entry visa, in practice, the Foreign Ministry issues only single entry visas. Additionally, an AMS visa is only issued once per year per employee. Therefore, if the employee departs Turkey during this initial 90-day period, he or she will not be able to re-enter Turkey in AMS visa status for one year.

If an AMS visa is issued for fewer than 90 days, and the assembly/maintenance work persists beyond the duration of the visa, lawful stay may be extended at the discretion of the government, but generally for no longer than a total of 90 days. Authorization to remain based on AMS grounds will be in the form of a specialized residency permit. This application is filed at the Foreigner’s Division of the Police Department in the locality where the work is being done.

Although Turkish visa regulations do not provide many options for employment-based visas outside of the work permit regime, the AMS visa is a common option used by companies.

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9. Publications and Items of Interest

U.S. Citizenship and Immigration Services has issued the E-Verify Supplemental Guide for Federal Contractors. The guide discusses regulations affecting federal contractors; instructions for verifying new and existing employees; E-Verify enrollment and participation as a federal contractor; enrollment instructions for certain organizations that qualify as exceptions; qualifying contracts, exemptions, and exceptions; subcontractors, independent contractors, and affiliates; and information for designated agents.

The guide is available at http://www.uscis.gov/USCIS/E-Verify/Federal%20Contractors/Supplemental%20Guidance%20for%20Federal%20Contractors%20082709%20FINAL.pdf. Other E-Verify guidance includes the E-Verify User Manual for Employers, available at http://www.uscis.gov/files/nativedocuments/E-Verify_Manual.pdf, and the E-Verify User Manual for General Users, Program Administrators and Designated Agents, available at http://www.uncp.edu/hr/employment/E-VerifyUserManual.pdf.

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10. Recent News from ABIL Members

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) was quoted recently in the Los Angeles Daily Journal in “U.S. Colleges Grapple With Worker Status Verification.” Mr. Paparelli noted that, “In addition to new hires, employers are trying to understand what to do about existing employees.” He said that the expansion of the system is likely to create pressures on the E-Verify database.

In the same article, Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) noted that “now so many companies and institutions around the country, big and small, nonprofit, and for-profit, colleges and others are having to become more of an immigration policeman than they did under the old system.”

Mr. Yale-Loehr was quoted in “Congress Re-Evaluates Fast-Track Visa Program,” published on September 22, 2009, by China Daily. Mr. Yale-Loehr said he thinks the chances of the EB-5 program ending are “remote,” noting that Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, and others have spoken in favor of making the program permanent. “With their support the chances of getting permanency is high,” he said. The article is posted at http://www.chinadailyusa.com/2009/september/21/congress-re-evaluates-fast-track-visa-program.html.

Charles Kuck recently posted a blog on the possible increase in USCIS fees and suggestions for meeting the agency’s budget. Among other things, Mr. Kuck noted, “This last week we submitted a 3,000 page (30 lb.) response to an RFE (see the picture above), which alleged that an Accountant was not a professional position! Director, what is the deal with your Service Centers? Is there simply too little to do and too many employees?” The blog is posted at http://immigration.net/blog/.

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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. DHS Proposes To Rescind Social Security No-Match Rule; SEVIS Data To Be Integrated Into E-Verify – DHS has proposed to rescind amendments relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters.

2. OMB Extends I-9 Approval to August 31, 2012 – Employers may use the I-9 with a revision date of either August 7, 2009, or February 2, 2009.

3. Seventh Circuit Affirms Time Limits on Labor Certifications – The U.S. Court of Appeals for the Seventh Circuit affirmed a Department of Labor amended regulation setting time limits on grants of labor certification.

4. Employment-Based Fourth Preference Categories Unavailable for September – The employment fourth preference is expected to return to “Current” status in October, the first month of the new fiscal year.

5. USCIS Clarifies Regulatory Requirements for Filing H-2B Petitions by Certain Associations and Their Members – USCIS said it has noticed a particular type of filing error, involving “master” petitions, in many H-2B petitions filed by certain associations on behalf of their members.

6. DHS Announces New Directives on Border Searches of Electronic Media – DHS announced new directives to enhance and clarify oversight of computer and other electronic media searches at U.S. ports of entry.

7. International Educators Ask President To Restore Academic Travel To Cuba – The letter cites the benefits of academic exchanges and notes that opportunities for Americans to study abroad in Cuba have declined precipitously.

8. Congress Examines Foreign Investment, Verification, Real ID Issues At Recent Hearings – The EB-5 Immigrant Investor Regional Center Program is set to expire at the end of September; Sen. Leahy said that making the program permanent “is a critical first step to its continuing success.”

9. ABIL GLOBAL: Belgian Corporate Immigration Update – Among other things, a social security agreement between Belgium and India took effect on September 1, 2009.

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

11. Government Agency Links – Government Agency Links

Details:

1. DHS Proposes To Rescind Social Security No-Match Rule; SEVIS Data To Be Integrated Into E-Verify

On August 19, 2009, the Department of Homeland Security (DHS) proposed to rescind the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters. The U.S. District Court for the Northern District of California had enjoined implementation of the 2007 final rule on October 10, 2007. After further review, DHS said it plans to focus its enforcement efforts relating to the employment of unauthorized workers on increased compliance through improved verification, including participation in E-Verify, the ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.

DHS noted that in fiscal year 2010, U.S. Citizenship and Immigration Services plans to improve the E-Verify system’s ability to automatically verify international students and exchange visitors through the incorporation of ICE’s Student and Exchange Visitors Information System (SEVIS) data into E-Verify. By incorporating SEVIS nonimmigrant student visa data into the automatic initial E-Verify check, the number of students and exchange visitors who receive initial mismatches should be reduced, DHS said. In 2010, ICE will launch a new version of SEVIS (SEVIS II), which will include employment eligibility information that E-Verify will be able to access electronically. Currently, the SEVIS database is checked manually by immigration status verifiers after an initial mismatch occurs.

DHS’s proposed rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-19826.pdf.

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2. OMB Extends I-9 Approval to August 31, 2012

U.S. Citizenship and Immigration Services (USCIS) announced on August 27, 2009, that the Office of Management and Budget has extended its approval of Form I-9 (Employment Eligibility Verification Form) to August 31, 2012. Consequently, USCIS has amended the form to reflect a new revision date of August 7, 2009.

Employers may use the I-9 with a revision date of either August 7, 2009, or February 2, 2009. The revision dates are located on the bottom right-hand portion of the form.

The announcement is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/August%202009/update_I-9_extension0827.pdf.

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3. Seventh Circuit Affirms Time Limits on Labor Certifications

The U.S. Court of Appeals for the Seventh Circuit affirmed a Department of Labor amended regulation setting time limits on grants of labor certification. Specifically, the amended regulation states that an approved permanent labor certification granted on or after July 16, 2007, expires if not filed in support of an I-140 petition within 180 calendar days of the date the Department granted the certification, and that an approved permanent labor certification granted before July 16, 2007, expires if not filed in support of an I-140 petition within 180 calendar days of July 16, 2007.

Between March 2001 and May 2007, 14 unaffiliated Illinois businesses filed applications for labor certification on behalf of 15 potential employees. Thirteen were approved before the amended regulation took effect on July 16, 2007; the other two were approved after that date. After the Department of Homeland Security rejected eight of the workers’ visa petitions because of expired labor certifications, the 14 businesses and 15 workers sued the Departments of Labor and Homeland Security. Among other things, the plaintiffs sought a judgment that the Department of Labor’s promulgation of the amended regulation was beyond its authority or, alternatively, that retroactive application of the amended regulation was unlawful. The eight workers also sought a writ of mandamus against the Department of Homeland Security to compel the agency to process their visa petitions.

The Seventh Circuit ruled in favor of the government, noting among other things that when the Department of Labor amended its regulation to establish a 180-day time limit for previously approved labor certifications, the plaintiffs’ right to the certifications’ indefinite validity ended, and the plaintiffs did not possess any vested right that the amended regulation could impair.

The case is available at http://adnet-nyc.com/Article/durable.pdf.

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4. Employment-Based Fourth Preference Categories Unavailable for September

The Department of State’s Visa Bulletin for September notes that heavy applicant demand for green card numbers in the employment fourth, and employment fourth “Certain Religious Worker,” categories has resulted in their becoming “Unavailable” for September. This unavailable status took effect immediately in August because the annual limit for those categories was reached. Therefore, the Department said, no further requests for numbers in those categories can be processed during fiscal year 2009.

The employment fourth preference is expected to return to “Current” status in October, the first month of the new fiscal year. The employment fourth “Certain Religious Workers” category is scheduled to expire on September 30, 2009, and future availability will depend on legislative action.

The latest Visa bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4558.html.

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5. USCIS Clarifies Regulatory Requirements for Filing H-2B Petitions by Certain Associations and Their Members

U.S. Citizenship and Immigration Services (USCIS) issued a clarification on August 28, 2009, to associations and their members of certain regulatory requirements for filing petitions for H-2B classification on behalf of foreign workers. USCIS said it has noticed a particular type of filing error in many H-2B petitions filed by certain associations on behalf of their members. Rather than filing an individual petition with USCIS, some employers who are members of an association have sought H-2B non-agricultural workers via a “master” petition filed by their association.

USCIS noted that a “master” petition is a petition that:

• Is filed by an association (listing the association as petitioner) on behalf of several of its member-employers; and
• Includes multiple temporary labor certifications that have been issued by the Department of Labor (DOL) for each individual member-employer, rather than a single temporary labor certification certified for the particular association itself as an employer or “joint employer.”

USCIS said it recognizes that the facts of each case may be different, but that association member-employers generally should file a petition for H-2B classification directly and separately (listing themselves as the petitioner) with USCIS, rather than through a “master” petition filed by an association (listing the association as the petitioner) on behalf of several of its members. Petitions filed by associations that fail to meet the petitioner requirements for H-2B classification will be denied, USCIS warned.

The clarification, which includes discussion and analysis of the reasons why H-2B petitions filed by associations on behalf of their employer members generally would not qualify for H-2B classification, is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/August%202009/h2b-filed-by-associations.pdf.

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6. DHS Announces New Directives on Border Searches of Electronic Media

On August 27, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano announced new directives to enhance and clarify oversight of computer and other electronic media searches at U.S. ports of entry. The new directives address the circumstances under which U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) can conduct border searches of electronic media consistent with the Department’s authority to search other sensitive non-electronic materials, such as briefcases, backpacks and notebooks, at U.S. borders.

DHS said the new directives will also allow the agency “to develop automated, comprehensive data collection and analytic tools to facilitate accurate, thorough reporting on electronic media searched at the border, the outcomes of those searches and the nature of the data searched.”

Between October 1, 2008, and August 11, 2009, CBP encountered more than 221 million travelers at U.S. ports of entry. Approximately 1,000 laptop searches were performed during that time. Of those, 46 were “in-depth.”

Among other things, related CBP guidance issued on August 20, 2009, notes:

Officers may encounter materials that appear to be legal in nature, or an individual may assert that certain information is protected by attorney-client or attorney work product privilege. Legal materials are not necessarily exempt from a border search, but they may be subject to the following special handling procedures: If an Officer suspects that the content of such a material may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the Officer must seek advice from the CBP Associate/Assistant Chief Counsel before conducting a search of the material, and this consultation shall be noted in appropriate CBP systems of records. CBP counsel will coordinate with the U.S. Attorney’s Office as appropriate.

Other possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy.

Officers encountering business or commercial information in electronic devices shall treat such information as business confidential information and shall protect thatinformation from unauthorized disclosure. Depending on the nature of the information presented, the Trade Secrets Act, the Privacy Act, and other laws, as well as CBPpolicies, may govern or restrict the handling of the information. Any questions regarding the handling of business or commercial information may be directed to the CBPAssociate/Assistant Chief Counsel.

Information that is determined to be protected by law as privileged or sensitive will only be shared with federal agencies that have mechanisms in place to protectappropriately such information.

The CBP guidance also notes that an officer at the border may “detain” electronic devices or copies of information contained in them for “a reasonable period of time to perform a thorough border search,” which may take place either on-site or at another location. The guidance states that unless extenuating circumstances exist, the detention of such devices ordinarily should not exceed five days and should be completed “as expeditiously as possible.” Supervisory approval is required for detaining electronic devices, or copies of information contained in them, for continuation of a border search after an individual’s departure. Port Director, Patrol Agent in Charge, or other equivalent level manager approval is required to extend any such detention beyond five days.

The DHS notice and CBP guidance are available at http://www.aila.org/content/default.aspx?docid=29899.

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7. International Educators Ask President To Restore Academic Travel To Cuba

NAFSA: Association of International Educators, along with a group of 17 organizations, sent a letter on July 22, 2009, to President Obama urging him to remove restrictions on academic travel to Cuba. The letter cites the benefits of academic exchanges and notes that opportunities for Americans to study abroad in Cuba have declined precipitously since the Bush administration imposed restrictions on academic travel to Cuba in 2004. NAFSA noted that 220 American college students studied in Cuba during the 2006-2007 academic year; three years earlier, 10 times as many students had done so. The letter also supports granting U.S. visas to Cubans coming to the U.S. for exchange purposes, and a policy favoring academic, cultural, religious, sports, and professional visits. The letter further urges Cuban authorities to grant exit visas for students and scholars accepted by U.S. academic institutions.

The letter is available at http://www.nafsa.org/_/File/_/POTUS_Cuba_July_09.pdf.

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8. Congress Examines Foreign Investment, Verification, Real ID Issues At Recent Hearings

The Senate and House recently held hearings on various employment-based immigration issues:

• The Senate Judiciary Committee held a hearing on July 22, 2009, “Promoting Job Creation and Foreign Investment in the United States: An Assessment of the EB-5 Regional Center Program.” Sen. Patrick Leahy (D-Vt.) noted in his opening statement that the EB-5 Immigrant Investor Regional Center Program is set to expire at the end of September, and that making the program permanent “is a critical first step to its continuing success.” Sen. Leahy noted that the program “has been responsible for the investment of hundreds of millions of dollars, and the creation of tens of thousands of jobs in American communities since 1993. The program has paved the way for ski resort expansion in Vermont, dairy operations in Iowa, energy development in Oklahoma and Texas, and the manufacture of hurricane-resistant housing in Alabama. These are just a few examples of projects financed by foreign investment through the Regional Center program, and all indications are that interest in the program is growing.” Witnesses at the hearing included Michael Dougherty, Robert Kruszka, Alliance of Business Immigration Lawyers member Stephen Yale-Loehr, William Stenger, and Ron Drinkard. Their testimony, and Sen. Leahy’s statement, are available at http://judiciary.senate.gov/hearings/hearing.cfm?id=3998.
• The Senate Judiciary Committee held a hearing on July 20, 2009, “Time Change – Ensuring a Legal Workforce: What Changes Should Be Made To Our Current Employment Verification System?” Sen. Russ Feingold (D-Wis.) said in his opening statement that he is concerned about recent efforts to make E-Verify mandatory and to expand its use to federal contractors “without first fixing the current problems with the system.” He noted that according to a 2006 report by the Social Security Administration’s Inspector General, “the data set on which E-Verify relied contains errors in 17.8 million records, affecting 12.7 million U.S. citizens. If E-Verify becomes mandatory before these errors are fixed, millions of Americans could be misidentified as unauthorized to work.” Witnesses at the hearing included Rep. Luis Gutierrez, Michael Aytes, James Ziglar, and Lynden Melmed. Their testimony, and Sen. Feingold’s statement, are available at http://judiciary.senate.gov/hearings/hearing.cfm?id=3982.
• The Senate Committee on Homeland Security and Governmental Affairs held a hearing on July 15, 2009, “Identification Security: Reevaluating the Real ID Act.” Witnesses at the hearing included Janet Napolitano, Jim Douglas, Stewart Baker, Leroy Baca, David Quam, and Ari Schwartz. Their testimony, and committee member statements, are available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=3d9a52cd-c442-4dee-9a1f-b02ed3b38000.

The House of Representatives’ Committee on Oversight and Government Reform held a hearing on July 23, 2009, “E-Verify: Challenges and Opportunities.” Witnesses at the hearing included Angelo Amador, David Rust, Gerri Ratliff, and Jena Baker McNeill. Their testimony is available at http://governmentmanagement.oversight.house.gov/story.asp?ID=2552.

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9. ABIL GLOBAL: Belgian Corporate Immigration Update

The Belgian regulations regarding corporate immigration have been updated on a regular basis since 2007.

The Belgian regulations are influenced by European Union (EU) legislation. Citizens from almost all EU/European Economic Area (EEA) Member States (Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and the United Kingdom), as well as some of their family members, can now work in Belgium without a work permit on the basis of their citizenship. However, this does not apply to Bulgaria and Romania, which joined the EU on January 1, 2007. Nationals of those two countries still need to obtain a work permit to work in Belgium until December 31, 2011. Until that time, Bulgarian and Romanian citizens can gain easier access to the Belgian labor market if they work in a “labor shortage profession.”

The changes to corporate immigration legislation also reflect the need to meet business needs. For instance, if a foreign employee can be considered to be key personnel or, effective from May 29, 2009, executive-level personnel employed by Belgian headquarters of a multinational company or of a group of companies, he or she will not need a work permit, provided that he or she earns at least 59.460 EUR (amount for 2009) gross on a yearly basis. To qualify as Belgian headquarters, several conditions, linked to tax and corporate law, must be met. This exemption is not limited in time.

Social security is an important aspect of corporate immigration. Belgium has been quite active over the past few years in negotiating and entering into bilateral social security agreements with several countries. One of these countries is India. Belgium and India reached a bilateral agreement on social security on November 3, 2006. The “Agreement of Social Security between the Kingdom of Belgium and the Republic of India” was approved by the Act of February 12, 2009, and was published in the Belgian State Gazette on August 21, 2009. The agreement, which took effect on September 1, 2009, allows a Belgian or Indian employee (i) who is employed by a Belgian or Indian employer, (ii) who pays contributions under the Belgian or Indian legislation, and (iii) who is posted to India or Belgium, to remain subject to the Belgian or Indian legislation regarding social security for employees, provided that the foreseeable duration of the work does not exceed, in principle, 60 months.

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10. Recent News from ABIL Members

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) was quoted in an article about EB-5 investors published August 13, 2009, in the Christian Science Monitor. The article notes that foreign entrepreneurs with at least $500,000 to invest in a designated “regional center” can get a green card in months rather than years. Mr. Yale-Loehr noted that “[f]or certain countries like China and India, we have long green card
backlogs in most categories – but not in the EB-5 category.” The article is available at http://features.csmonitor.com/economyrebuild/2009/08/13/want-a-us-green-card-bring-cash/.

Charles Kuck (bio: https://www.abil.com/lawyers/lawyers-kuck.cfm) was quoted in the New York Times on August 14, 2009. The article is available at http://www.nytimes.com/2009/08/15/us/15utah.html?_r=1&emc=eta1. He noted that shadowy lawyers emerge whenever immigration reform legislation is considered. “Every state has a…man or a woman who has been arrested or indicted, or should be arrested or indicted, for engaging in fraudulent activity.”

Mr. Kuck recently represented Youssef Megahed, an Egyptian student who had been acquitted in federal court of terrorism charges but held on immigration charges. On August 20, 2009, an immigration judge found that there was insufficient evidence that Mr. Megahed was engaged in terrorist activities. Mr. Megahed was freed pending the government’s appeal. For more on this case, see http://www.nytimes.com/2009/08/22/us/22deport.html.

Angelo Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) recently co-authored an article, “Form(s) Over Substance – USCIS Plunges to New Low,” published in the New York Law Journal. The article notes that USCIS officers, “enmeshed in a culture of ‘no,’ are more focused on detecting fraud than interpreting the law with commonsense notions of fairness and justice.” The article refers to a blog posting by Mr. Kuck, “USCIS–H-1B Investigations Run Amok!” (Aug. 7, 2009), accessible at http://ailaleadership.blogspot.com/2009/08/uscis-h-1binvestigations-run-amok.html. The article is available at http://www.seyfarth.com/dir_docs/publications/AttorneyPubs/Form(s)overSubstance.pdf.

Mr. Paparelli was quoted on August 28, 2009, by the Society for Human Resource Management. In “Drop in H-1B Visa Petitions: Blip or Lasting Trend?”, Mr. Paparelli noted that U.S. Citizenship and Immigration Services has been “quite sensitive” to political pressures, and that its requests for evidence (RFEs) are becoming increasingly burdensome. For example, Mr. Paparelli noted, an RFE might demand to see how a contract specifies that services will be performed by a worker in a specialty occupation, but “[m]any contracts don’t do that.” He noted that once USCIS receives a copy of a contract, it may then be subject to a Freedom of Information Act request, which carries a risk of disclosure of confidential company information to competitors. For a link to the article, available to SHRM members, see http://www.shrm.org/LegalIssues/FederalResources/Pages/default.aspx.

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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. USCIS Issues Guidance to Employers Whose H-1B Petitions for Health Care Specialty Occupations Are Denied – Employers whose petitions were denied on certain bases should send an e-mail to the USCIS Service Center that issued the denial to request review.

2. DHS Secretary Announces Support for Federal Contractor E-Verify Rule, Intention to Rescind No-Match Rule – Janet Napolitano announced the Obama administration’s support for the delayed E-Verify regulation, and the DHS’s intention to rescind the Social Security No-Match Rule.

3. Krispy Gets Kremed: $40,000 Fine Incurred for Immigration Violations – 652 businesses around the country will be audited to determine their compliance.

4. Court Remands Case Denying Visa to Muslim Scholar – The court remanded the case to the district court for further proceedings.

5. Ninth Circuit Finds Sponsor Did Not Qualify Because Not Domiciled in U.S. – The sponsor/husband had resided in Japan for three years, owned no property in the U.S., and had a personal bank account in Japan.

6. Use of Covert Tactics Ethical in Unauthorized Practice of Law Investigations, Virginia UPL Committee Finds – It is ethical for staff counsel of the Virginia State Bar to direct a bar investigator, or other outside investigator or volunteer, to engage in covert techniques in any UPL investigation in which no other reasonable alternative is available.

7. USCIS Provides Guidance on I-751s Filed Before Termination of Marriage – The memo provides guidance on how to adjudicate an I-751 petition if the conditional permanent resident and petitioning spouse are legally separated or have initiated divorce or annulment proceedings.

8. ABIL Global: Canadian Immigration Law Update: – During the past year, Citizenship and Immigration Canada (CIC) has made significant changes to the Federal Skilled Worker application process.

9. Publications and Items of Interest – 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 Issues Guidance to Employers Whose H-1B Petitions for Health Care Specialty Occupations Are Denied

U.S. Citizenship and Immigration Services (USCIS) issued guidance on July 17, 2009, to certain employers who received a denial of Form I-129, Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary to practice in a health care specialty occupation before May 20, 2009.

If the I-129 was denied solely on the basis that the beneficiary did not possess a master’s or higher degree in the field, the petition may be reopened on service motion and will be adjudicated in accordance with the May 20, 2009, memorandum on “Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation” (see http://www.uscis.gov/files/nativedocuments/health_care_occupations_20may09.pdf). That memo provides clarification on the standards for H-1B health care specialty occupations. USCIS will only review denials of petitions for which it has received a written request for review from the petitioning employer or its representative.

Employers whose I-129 petitions were denied on the above basis should send an e-mail to the USCIS Service Center that issued the denial to request review. An affirmative request for review from the petitioner or its representative is required to expedite this process, USCIS said. The agency said that it is providing a “special accommodation to the public” by initiating Service Motions to Reopen (upon receiving an e-mail request) in lieu of requiring petitioners to file an appeal. USCIS is not requiring petitioners to submit an appeal fee or any other fee in this instance.

Requests should include “PT/OT Service Motion Request” in the subject line of the e-mail, and will be accepted through August 14, 2009. Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the California Service Center should be e-mailed to: [email protected].

Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the Vermont Service Center should be e-mailed to: [email protected].

Affected petitioners requesting USCIS review of their H-1B petitions are not required to submit a copy of the May 20, 2009, memorandum, but should explain how the beneficiary meets the standards set forth in that memorandum. Also, as with the reopening on a Service Motion, USCIS must be satisfied before approval that the beneficiary is currently eligible to practice in his or her respective health care occupation in the state of intended employment. USCIS advises petitioners to document this evidence. In any case where USCIS cannot make a final decision on the record before it, USCIS may request additional information. If the petition was denied upon additional grounds, or if the petitioner fails to submit requested evidence of the beneficiary’s continuing eligibility, the original denial of the case will be affirmed.

The USCIS memo is available at http://www.uscis.gov/files/article/h-1b_health_care_professionals_17jul09.pdf.

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2. DHS Secretary Announces Support for Federal Contractor E-Verify Rule, Intention to Rescind No-Match Rule

On July 8, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano announced the Obama administration’s support for a delayed regulation that will award federal contracts only to employers who use E-Verify to check employees’ work authorization. Secretary Napolitano also announced the Department’s intention to rescind a Social Security “No-Match” rule in favor of the E-Verify system.

Following the previous announcement of the delay in the effective date of the new E-Verify rule until September 8, 2009, U.S. Citizenship and Immigration Services (USCIS) instructed federal contractors not to use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the Federal Acquisition Regulation’s E-Verify clause. The new final E-Verify rule will require federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors’ current employees who perform contract services for the federal government within the U.S. A DHS press release said the Obama administration intends to “push ahead” with full implementation of the rule, which will apply to federal solicitations and contract awards government-wide starting on September 8, 2009.

The DHS also will propose a new regulation rescinding the 2007 No-Match rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive Social Security no-match letters or notices from DHS that call into question work eligibility information provided by employees. These notices most often inform an employer many months or even a year later that an employee’s name and Social Security Number provided for a W-2 earnings report do not match SSA records, often due to typographical errors or unreported name changes. The DHS said that E-Verify “addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment.”

The press release is available at http://www.dhs.gov/ynews/releases/pr_1247063976814.shtm.

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3. Krispy Gets Kremed: $40,000 Fine Incurred for Immigration Violations

It seems there is a hole in Krispy Kreme’s immigration compliance doughnut. On July 7, 2009, U.S. Immigration and Customs Enforcement (ICE) and the Butler County, Ohio, Sheriff’s Office announced a $40,000 fine settlement reached with the Krispy Kreme Doughnut Corporation for violations of immigration laws. ICE conducted an I-9 inspection of Krispy Kreme after receiving information from the Butler County Sheriff’s Office that the company had employed dozens of undocumented workers at one of Krispy’s doughnut factories in Cincinnati.

In other news, ICE recently found that nearly a third of 6,000 American Apparel workers may lack work authorization. Dov Charney, CEO of American Apparel, said, “Many of these employees, some of whom have worked at American Apparel for as long as a decade, have been responsible, hard-working employees who have made significant contributions to the Company’s growth and success. As a company that prides itself on being one of the last major apparel manufacturers still making clothing in the United States, at a ‘sweatshop free’ factory where we pay our garment workers some of the highest wages in the industry, it is the company’s hope–and my personal hope as an immigrant myself–that these employees are able to confirm their work authorization so that they may continue to work at American Apparel. The company remains very proud of its track record as an advocate for the comprehensive reform of the country’s immigration laws.” ICE has also announced that as part of a new auditing initiative, 652 businesses around the country will be audited to determine their levels of I-9 compliance.

More information on the American Apparel case is available at http://investors.americanapparel.net/releasedetail.cfm?ReleaseID=393357. The ICE notice is available at http://www.ice.gov/pi/nr/0907/090707cincinnati.htm.

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4. Court Remands Case Denying Visa to Muslim Scholar

Tariq Ramadan is a Swiss-born Islamic scholar whose work focuses on the integration of Muslim beliefs with Western European culture and society. Before August 2004, he traveled regularly to the U.S., giving lectures at institutions such as Harvard and Princeton and to the Department of State, and attending meetings and conferences. As a Swiss citizen, Ramadan was eligible to participate in the Visa Waiver Program (VWP). Thus, Ramadan did not need to apply for a visa to enter the U.S. for these short engagements.

In January 2004, Ramadan accepted a tenured teaching position at the University of Notre Dame. Notre Dame submitted an H-1B visa petition on Ramadan’s behalf, which was approved in May 2004. Ramadan made arrangements for the move, scheduled for early August 2004. On July 28, 2004, however, the U.S. Embassy in Bern revoked his visa approval without an explanation. In response to press inquiries, a Department of Homeland Security (DHS) spokesperson stated that the basis for the revocation was a provision of the Immigration and Nationality Act (INA) that then permitted exclusion of prominent individuals who endorse or espouse terrorist activity. The Government later denied that this “endorse or espouse” provision provided the grounds for the revocation.

The consulate advised Ramadan that he could re-apply for a visa. Notre Dame accordingly filed a second H-1B visa petition on October 4, 2004. By December 13, 2004, the DHS had not yet acted on the second petition, and on that date Ramadan resigned from the position at Notre Dame. On December 21, 2004, having been informed about the resignation, the DHS revoked the renewed H-1B petition. After this revocation, Ramadan could no longer take advantage of the VWP that had authorized his previous temporary entries.

On September 16, 2005, Ramadan applied for a B visa to enter the U.S. for a short period of time to attend conferences. According to Ramadan, he was interviewed by consular and DHS officials at the U.S. Embassy in Bern, Switzerland, in 2005. He was questioned about his political views and associations. Ramadan informed officials that, between 1998 and 2002, he had donated approximately $1,336 to the Association de Secours Palestinien (ASP), which was designated by the U.S. Treasury Department as a terrorist organization due to its funding of Hamas. Ramadan received a telephone call on September 19, 2006, and a letter shortly thereafter, informing him that the consulate had denied his petition because he had provided material support to a terrorist organization. Consular officials based this decision on a security advisory opinion, Ramadan’s interviews, and “additional information provided by Washington.”

On January 25, 2006, plaintiffs filed suit in the District Court challenging Ramadan’s ongoing exclusion from the U.S. The three plaintiff organizations (the American Academy of Religion, the American Association of University Professors, and the PEN American Center) appealed the denial of a visa to Ramadan on the grounds that it violated their First Amendment right to have Ramadan share his views with the organizations and with the public. The U.S. government contended that the visa was properly rejected on the ground that Mr. Ramadan’s contributions to the ASP, which provided some financial support to Hamas, rendered him inadmissible. The government prevailed, and the plaintiffs filed an appeal with the U.S. Court of Appeals for the Second Circuit.

On July 17, 2009, the court of appeals remanded the case to the district court for further proceedings. Among other things, the Second Circuit concluded that the record did not establish that the consular officer who denied the visa confronted Ramadan with the allegation that he had knowingly rendered material support to a terrorist organization, thereby precluding an adequate opportunity for Ramadan to attempt to satisfy the statutory provision that exempts a visa applicant from exclusion under the “material support” subsection if he “can demonstrate by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization.”

The opinion is available at http://www.aclu.org/pdfs/safefree/americanacademyofreligion_secondcircuitruling.pdf.

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5. Ninth Circuit Finds Sponsor Did Not Qualify Because Not Domiciled in U.S.

In an opinion on July 9, 2009, the U.S. Court of Appeals for the Ninth Circuit found that substantial evidence supported the Board of Immigration Appeals’ determination that a South Korean’s U.S. sponsor (and husband) did not qualify as a sponsor because he was not domiciled in the U.S. At the time of the adjustment of status hearing in 2001, the sponsor/husband had resided in Japan for three years, owned no property in the U.S., and had a personal bank account in Japan. He visited his wife in Hawaii three times in three years: once for a week, the second time for three to four days, and the last time to testify before the immigration judge. He stated that his long-term plan was to return to Hawaii and open a business, but he could not identify the specific date of his return.

The opinion is available at http://www.metnews.com/sos.cgi?0709%2F07-74420.

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6. Use of Covert Tactics Ethical in Unauthorized Practice of Law Investigations, Virginia UPL Committee Finds

The Virginia State Bar’s Unauthorized Practice of Law (UPL) Committee recently found that it is ethical for staff counsel of the Virginia State Bar to direct a bar investigator or other outside investigator or volunteer to engage in covert techniques in the investigation of the unauthorized practice of law in any case in which no other reasonable alternative is available.

The Committee noted that law enforcement authorities, including government lawyers, are authorized to conduct or supervise undercover operations using deception to gather information about criminal conduct. The Committee’s opinion is that lawyers involved in or supervising undercover activity in such cases are not acting unethically despite the general prohibition against conduct involving fraud, dishonesty, deceit, or misrepresentation reflecting adversely on the lawyer’s fitness to practice law.

The Committee has also stated that although undercover investigations involve some elements of misrepresentation and deceit, the conduct does not reflect adversely on the fitness or character of the lawyer directing or supervising a lawful criminal investigation. The Supreme Court of Virginia has specifically approved a legal ethics opinion that recognizes a “law enforcement” exception. This exception includes civil investigations using “testors” conducted under the supervision of government lawyers charged with investigation and prosecuting cases of housing discrimination. The Committee said it sees no principled distinction between these types of investigations, in which undercover operations have been approved, and a UPL investigation in which lawyers and agents of a governmental agency are charged by law with the investigation of conduct that is criminal or illegal.

The Committee’s opinion is available at http://www.vacle.org/opinions/1845.htm.

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7. USCIS Provides Guidance on I-751s Filed Before Termination of Marriage

Donald Neufeld, U.S. Citizenship and Immigration Services Acting Associate Director, sent a memo to the field on I-751s filed before the termination of a marriage. The memo provides guidance on how to adjudicate an I-751 petition if the conditional permanent resident and petitioning spouse are legally separated or have initiated divorce or annulment proceedings, but the marriage has not been terminated.

The memo is available at http://www.uscis.gov/files/nativedocuments/i-751_Filed_%20Prior_Termination_3apr09.pdf.

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8. ABIL Global: Canadian Immigration Law Update:

During the past year, Citizenship and Immigration Canada (CIC) has made significant changes to the Federal Skilled Worker application process, including the eligibility criteria. Most notably, CIC dramatically restricted the number of occupations under which skilled workers may be eligible to apply for Canadian permanent residence from hundreds of occupations to a meager 38, listed at http://www.cic.gc.ca/english/immigrate/skilled/apply-who-instructions.asp.

CIC also introduced a new inland skilled worker permanent residence application category designed to facilitate and permanently integrate workers already in Canada. This inland permanent residence application process applies to students and workers who have obtained experience in Canada in occupations that require college education, apprenticeship training, a university education, or management experience.

CIC has recognized that integration is an important aspect of the skilled worker program. To facilitate immigrant integration, CIC’s new criteria emphasizes language proficiency (in English or French) and occupations in demand, either because they are set out in the list noted above or because the foreign worker has gained the requisite minimum experience in Canada.

The various Federal and Inland Skilled Workers Application changes reflect CIC’s position that a foreign national’s integration into Canada is best achieved through employment. Although this position has not translated to date into the facilitation of work permits for foreign nationals outside of Canada, it has resulted in a few new work permit policies that also are noteworthy: (1) work permits for spouses of foreign workers within a higher skill level range, (2) work permits for spouses of full-time students in Canada, (3) longer post-graduate work permits, and (4) work permits for working-age dependent children of workers destined for certain provinces.

Notwithstanding the occupational restrictions set out above, Canada remains a good immigration alternative to the U.S. for foreign nationals seeking permanent immigration status. Foreign nationals employed in one of the 38 occupations listed above with proficiency in English or French may have a good likelihood of immigrating to Canada, even if they no longer have legal status in the U.S. Likewise, foreign nationals, with skilled job offers in Canada and language proficiency, may qualify for immigration regardless of whether their occupation is one of the listed 38 occupations.

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9. Publications and Items of Interest

The Migration Policy Institute has released “Aligning Temporary Immigration Visas With U.S. Labor Market Needs: The Case for Provisional Visas,” by Demetrios G. Papademetriou, Doris Meissner, Marc R. Rosenblum, and Madeleine Sumption; and “The Next Generation of E-Verify: Getting Employment Verification Right,” by Doris Meissner and Marc R. Rosenblum. Links to the reports are available at http://www.migrationpolicy.org/pubs/.

The Small Business Administration has released a research summary, “High-Tech Immigrant Entrepreneurship in the United States,” by the Corporate Research Board. The report quantifies the role of immigrants in high-tech entrepreneurship using the High-Impact, High-Tech Company Survey database. The authors also examine U.S. immigration policies and processes (especially the H-1B visa) relevant to high-tech immigrant entrepreneurship. The report is available at http://www.sba.gov/advo/research/rs349.pdf.

The House Subcommittee on Government Management, Organization, and Procurement held a hearing on July 23, 2009, “E-Verify: Challenges and Opportunities. Links to the testimony are available at http://governmentmanagement.oversight.house.gov/story.asp?ID=2552.

The Council on Foreign Relations has released “U.S. Immigration Policy.” The 168-page report argues that “the continued failure to devise and implement a sound and sustainable immigration policy threatens to weaken America’s economy, to jeopardize its diplomacy, and to imperil its national security.” A link to the report in PDF format is available at http://www.cfr.org/publication/19556/.

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10. Recent News from ABIL Members

Steve Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm) testified on July 22, 2009, at an EB-5 immigrant investor oversight hearing before the Senate Judiciary Committee on the job creation and economic development potential of the EB-5 immigrant investor program. He noted that, if fully utilized, the EB-5 immigrant investor program could create over 100,000 new jobs for U.S. workers and $5 billion in new investments annually. His testimony is available at http://www.judiciary.senate.gov/hearings/testimony.cfm?id=3998&wit_id=8138

Mr. Yale-Loehr also was interviewed about the EB-5 program by WNYC, the public radio station in New York City, on July 23, 2009. To hear the interview, go to http://www.wnyc.org/news/articles/137276.

Angelo A. Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm) has published “Anti-Immigration Crazies Are No Laughing Matter,” available on his blog at http://www.nationofimmigrators.com/.

In another blog posting, Mr. Paparelli asks, “Why the rush to put the immigration squeeze on now? Is this a cynical and heartless ploy to appease and co-opt the xenophobes in advance of the push this fall for comprehensive immigration reform?” For more, see http://www.nationofimmigrators.com/?p=258>http://www.nationofimmigrators.com/?p=258.

H. Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm) recently spoke at the Annual Conference of the American Immigration Lawyers Association (AILA). The speech, “High Rollers: EB-5 Investors,” was designed to educate U.S. immigration lawyers about the different ways foreigners can apply for this visa program, either via investing in government-designated Regional Centers or going a different route. In either case, the program is designed so that wealthy foreigners invest a substantial amount of funds in the U.S. in return for getting favored immigration status.

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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/jsps/ptimes.jsp

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. Current I-9 Form Validity Extended Beyond June 30 – The I-9 form currently in use will continue to be valid beyond June 30, 2009.

2. H-1B Processing Time Will Increase July 1 – The ability to file an H-1B extension or change of employer petition for an H-1B employee on a same-day, or even same-week, basis will end on July 1.

3. CBP Reminds Visa Waiver Travelers of New Emergency/Temporary Passport Requirements Effective July 1 – Effective July 1, 2009, all VWP emergency or temporary passports must be electronic.

4. USCIS Discusses Requirements for H-1Bs in Health Care Specialty Occupations – USCIS issued a memorandum clarifying the standards for adjudicating H-1B petitions filed on behalf of beneficiaries seeking employment in a health care specialty occupation.

5. USCIS Resumes Premium Processing for Certain I-140s – Effective June 29, 2009, USCIS has resumed Premium Processing Service for certain I-140 Immigrant Petitions for Alien Worker.

6. USCIS Explains “Full-Time,” Discusses Job Creation Timing in EB-5 Immigrant Investor Program – Among other things, USCIS clarified that for purposes of the Immigrant Petition by Alien Entrepreneur adjudication and job creation requirements, USCIS will consider the two-year period to begin six months after approval of the I-526 petition.

7. USCIS Issues Guidance on Education, Training, Experience Requirements for Foreign Physicians – In particular, the memo provides guidance on determining whether a foreign medical degree (MD) is the equivalent of a U.S. MD, and thus constitutes an advanced degree for EB-2 purposes.

8. President, Members of Congress Discuss Immigration Reform – Department of Homeland Security Secretary Janet Napolitano will lead a group that will work with key members of the House and the Senate on immigration issues.

9. USCIS Discusses U.S. Interest-Related Discretionary Grants of H-2A, H-2B Status – Limited exceptions to the country requirements can be made when they are determined to be in the U.S. interest.

10. USCIS, FBI Eliminate Name Check Backlog, Set New Standard – The goal is to complete 98 percent of name check requests submitted by USCIS within 30 days, and the remaining two percent within 90 days.

11. USCIS Opens International Adjudication Branch in California – The International Adjudications Support Branch (IASB) will not accept in-person appointments.

12. USCIS Issues Court Notice to Pending I-360 Religious Workers – The court has ordered USCIS to accept properly filed I-485s and I-765s from beneficiaries of religious worker I-360s, and is allowing individuals whose concurrent filings were rejected previously to reapply for adjustment of status.

13. Publications and Items of Interest – Publications and Items of Interest

14. Recent News from ABIL Members – Recent News from ABIL Members

15. Government Agency Links – Government Agency Links

Details:

1. Current I-9 Form Validity Extended Beyond June 30

U.S. Citizenship and Immigration Services (USCIS) has announced that the I-9 Employment Eligibility Verification Form (rev. 2/2/09) currently in use will continue to be valid beyond June 30, 2009.

USCIS has requested that the Office of Management and Budget approve the continued use of the current I-9. While this request is pending, the form will not expire.

USCIS will update the I-9 when the extension is approved. Employers will be able to use either the I-9 with the new revision date or the I-9 with the 2/2/09 revision date at the bottom of the form.

The announcement is available at http://www.uscis.gov/files/article/update_employ_eligible_i9.pdf.

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2. H-1B Processing Time Will Increase July 1

The ability to file an H-1B extension or change of employer petition for an H-1B employee on a same-day, or even same-week, basis will end on July 1.

In the past several years, employers have become used to immediate turnaround of H-1B petitions, made possible by the Department of Labor’s (DOL) electronic system for filing and certification of the required Labor Condition Application (LCA). Effective June 30, 2009, the new iCert system for LCAs will eliminate same-day LCA approvals in many cases. Instead, the DOL may take up to seven business days to certify the LCA. Early experience with the system indicates that DOL is using all seven business days or more.

In the era of iCert, advance planning is a must. Employers should monitor the expiration dates of H-1B employees and allow sufficient time (4-6 months) for the preparation and filing of H-1B extensions and amendments. This delay in filing H-1B petitions will also affect the usefulness of H-1B portability, because an individual in H-1B status will only be authorized to work for the new employer upon the filing of the new petition, and a certified LCA is required to make that filing. Under the new system, LCA delays will likely add at least a week to 10 days to that process. Unfortunately, employees who fall victim to the economy will also feel the impact of the delayed LCA certification timing because it will delay their ability to file a new H-1B petition once they have obtained new employment.

If you have further questions on how iCert affects your workforce, contact your Alliance of Business Immigration Lawyers attorney for more information.

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3. CBP Reminds Visa Waiver Travelers of New Emergency/Temporary Passport Requirements Effective July 1

U.S. Customs and Border Protection (CBP) recently reminded Visa Waiver Program (VWP) travelers that effective July 1, 2009, all VWP emergency or temporary passports must be electronic. Under the VWP, an e-Passport contains an integrated chip that stores biographic data, a digitized photograph, and other information about the true bearer as indicated by a symbol on the passport cover. In lieu of a e-Passport, foreign nationals may apply for visitor’s visas from the State Department instead of traveling through the VWP.

CBP may exercise discretion for those who do not have e-Passports if they are traveling for medical or other emergency reasons.

The announcement is available at http://www.cbp.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/epssprt_vwp.xml.

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4. USCIS Discusses Requirements for H-1Bs in Health Care Specialty Occupations

U.S. Citizenship and Immigration Services (USCIS) has issued a memorandum clarifying the standards for adjudicating H-1B petitions filed on behalf of beneficiaries seeking employment in a health care specialty occupation.

Among other things, the memo notes that if the petitioner provides documentary evidence that the beneficiary has a valid license to practice a health care occupation (andmeets the definition of specialty occupation) in the state in which the beneficiary will be employed, the adjudicator “should not look beyond the license.” However, the petitioner will still need to provide evidence that the beneficiary is admissible. This guidance applies regardless of whether the beneficiary has a bachelor’s degree, master’s degree, or doctoral degree in the health care occupation.

If the beneficiary has an unrestricted license and the petition is otherwise approvable, the memo states that an adjudicator should approve the petition for the full H-1B period requested (up to three years) but may not approve the petition beyond the validity of the labor condition application. The memo notes that most states require a license to be renewed periodically. If the beneficiary has an unrestricted license, the memo states that the renewal date should not be considered when determining the validity period of the approval.

The memo is available at http://www.uscis.gov/files/nativedocuments/health_care_occupations_20may09.pdf.

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5. USCIS Resumes Premium Processing for Certain I-140s

U.S. Citizenship and Immigration Services (USCIS) has announced that effective June 29, 2009, it has resumed Premium Processing Service for certain I-140 Immigrant Petitions for Alien Workers. USCIS will accept premium processing requests for I-140s involving the EB-1 (extraordinary ability and outstanding professors/researchers), EB-2 (members of professions with advanced degrees or exceptional ability not seeking a national interest waiver), and EB-3 (professionals, skilled workers, and other workers) categories.

Premium processing is still not available for I-140s involving EB-1 multinational executives and managers and EB-2 members of professions with advanced degrees or exceptional ability seeking a national interest waiver.

Under premium processing, USCIS guarantees petitioners that for a $1,000 processing fee in addition to the normal filing fee, it will issue an approval notice, a notice of intent to deny, a request for evidence, or an investigation for fraud or misrepresentation within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, USCIS will refund the $1,000 fee and continue to process the request. In addition to faster processing, petitioners who participate in the program may use a dedicated phone number and e-mail address to check on the status of their petitions or ask related questions.

Premium processing continues to be available for previously designated classifications within the I-140 and within the I-129 Petition for Nonimmigrant Worker.

The notice is available at http://www.uscis.gov/files/article/premproc_22jun09.pdf.

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6. USCIS Explains “Full-Time,” Discusses Job Creation Timing in EB-5 Immigrant Investor Program

U.S. Citizenship and Immigration Services (USCIS) recently issued a guidance memorandum providing USCIS adjudication officers with instructions related to the timing of job creation and the meaning of “full-time” positions in the EB-5 Immigrant Investor Program.

The memo clarifies that for purposes of the Immigrant Petition by Alien Entrepreneur (Form I-526) adjudication and job creation requirements, USCIS will consider the two-year period to begin six months after approval of the I-526 EB-5 petition.

USCIS officers will ensure that the business plan filed with the I-526 reasonably demonstrates that the requisite number of jobs will be created by the end of the two-year period. For Regional Center petitions and for purposes of indirect job creation, USCIS adjudicators may consider economic models that rely on certain variables to show job creation and the amount of investment to determine whether the required infusion of capital or creation of direct jobs will result in a certain number of indirect jobs.

USCIS also has concluded that certain direct and indirect jobs that previously would have been considered to be temporary or intermittent (such as construction jobs) may be considered as permanent jobs for purposes of the EB-5 program if the positions can be expected to last at least two years.

A notice announcing the memo is available at http://www.uscis.gov/files/article/EB-5_Guidance.pdf. The memo is available at http://www.uscis.gov/files/nativedocuments/eb5_17jun09.pdf.

Alliance of Business Immigration Lawyers attorney Steve Yale-Loehr has written an article analyzing USCIS’s EB-5 memo. The article is available at http://www.millermayer.com/Immigration/EB5Investors/USCISClarifiesKeyAspectsofEB5Program/tabid/394/Default.aspx.

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7. USCIS Issues Guidance on Education, Training, Experience Requirements for Foreign Physicians

U.S. Citizenship and Immigration Services (USCIS) has issued a memorandum providing guidance on adjudication of the I-140 Petition for Alien Worker filed for certain physicians. In particular, the memo provides guidance to Immigration Services Officers (ISOs), formerly known as Information Immigration Officers (IIOs) or Adjudications Officers (AOs), on determining whether a foreign medical degree (MD) is the equivalent of a U.S. MD, and thus constitutes an advanced degree for EB-2 purposes.

The memorandum also addresses how to determine whether a foreign physician has met the education, training, and experience requirements of labor certification and licensure in the area of intended employment. The memo clarifies that all EB-2 and EB-3 physicians must overcome the “unqualified physician” provisions of INA § 212(a)(5)(B) at the time of the permanent job offer.

The memo notes that the U.S. is one of the few countries where medical school applicants must obtain a bachelor’s degree as a prerequisite to admission to medical school. As a result, a U.S. MD is considered to be an advanced degree. In many other countries, USCIS noted, a person may be admitted to medical school directly out of high school. In these instances, the program of study for the foreign medical degree is longer in length (generally 5-7 years in duration) than the program for a less specialized foreign bachelor’s degree (generally 3-4 years in duration.)

The memo is available at http://www.uscis.gov/files/nativedocuments/AFM_alien_physicians_i140_afm_update_ad09_10.doc.pdf.

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8. President, Members of Congress Discuss Immigration Reform

President Barack Obama met on June 25, 2009, with several members of his cabinet, advisors, and Congress to discuss immigration reform. President Obama noted that Department of Homeland Security Secretary Janet Napolitano will lead a group that will work with key members of the House and the Senate on immigration issues. President Obama said that “we’ve got a responsible set of leaders sitting around the table who want to actively get something done and not put it off until a year, two years, three years, five years from now, but to start working on this thing right now.”

Meanwhile, Charles Schumer (D-N.Y.), chair of the Senate’s immigration subcommittee, said on June 24 that he will hold hearings on employment-related immigration in July. Stay tuned.

President Obama’s statement is available at http://www.whitehouse.gov/the_press_office/Remarks-by-the-President-after-meeting-with-members-of-Congress-to-discuss-immigration/.

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9. USCIS Discusses U.S. Interest-Related Discretionary Grants of H-2A, H-2B Status

U.S. Citizenship and Immigration Services (USCIS) issued a memorandum elaborating on the adjudicator’s responsibility to consider thoroughly the evidence submitted in support of a request that a national from a country not eligible to participate in the H-2A or H-2B programs be accorded H-2A or H-2B status. The memo notes some of the factors to be taken into consideration when making the discretionary decision whether to grant H-2A or H-2B status to such persons.

The memo notes that nationals from the following countries are eligible to participate in the H-2A and H-2B visa programs (same countries for both programs): 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 list of eligible countries will be updated regularly, the agency said. Organizations or individuals, including members of Congress, interested in having a country added to the H-2A list should send a letter to the DHS Office of Policy (addressed to the Assistant Secretary for Policy) requesting such addition.

Limited exceptions to the country requirements can be made when they are determined to be in the U.S. interest. Based on regulatory requirements, USCIS said it takes into consideration the following factors when determining whether the U.S. interest requirement has been met:

1. Evidence that the beneficiary has been admitted to the U.S. previously in H-2A or H-2B status and complied with the terms of his or her status;
2. Evidence that a worker with the required skills is not available from a country on the list of eligible countries;
3. Low potential for abuse, fraud, or other harm to the integrity of the H-2A or H-2B program through the potential admission of these worker(s) that a petitioner plans to hire; and
4. Other factors that would serve the U.S. interest, if any.

Each request for a U.S. interest exception is considered on a case-by-case basis. Although USCIS will consider any evidence submitted to address each factor, the agency said it has determined that it is not necessary for a petitioner to satisfy every factor. Instead, a determination will be made based on the totality of circumstances.

The memo is available at http://www.uscis.gov/files/nativedocuments/h2a_h2b_eligible_countries.pdf.

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10. USCIS, FBI Eliminate Name Check Backlog, Set New Standard

U.S. Citizenship and Immigration Services (USCIS) has announced that, in partnership with the Federal Bureau of Investigation (FBI), it has met all milestones set forth in a joint business plan announced April 2, 2008, resulting in elimination of the FBI National Name Check Program (NNCP) backlog.

The goal was to complete 98 percent of name check requests submitted by USCIS within 30 days, and the remaining two percent within 90 days. This performance level will become the new standard, USCIS said. As is the case with all security checks undertaken by USCIS, any information provided by the FBI through these checks may require further evaluation and may lead to follow-up queries to other agencies. This could result in additional delays in processing, which USCIS said are not governed by the processing goals in the joint business plan. In the majority of instances, however, USCIS said the completion of a backlogged FBI name check has resulted in a “no record response.” Next steps in the adjudication of any cases that were delayed because of a pending FBI name check request may now include updating fingerprint results, scheduling interviews, requesting additional evidence and other reviews to determine whether the applicant is eligible for the requested immigration benefit.

The announcement is available at http://www.uscis.gov/files/article/NNCP_backlog_elim_22jun09.pdf.

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11. USCIS Opens International Adjudication Branch in California

The International Operations Division of U.S. Citizenship and Immigration Services (USCIS) recently opened a new support branch in Anaheim, California, to assist in processing select paper-based applications and petitions received from its international offices. The International Adjudications Support Branch (IASB) will not accept in-person appointments.

Initially, the IASB will focus its efforts on adjudicating non-health related applications to waive grounds of inadmissibility (Forms I-601) from USCIS’s office in Ciudad Juarez, Mexico. Such applicants must continue to file their waiver applications with USCIS at the U.S. consulate having jurisdiction over their place of residence.

The public may contact the IASB by mail at P.O. Box 65006, Anaheim, CA 92815-5006, or by e-mail to [email protected]. The announcement is available at http://www.uscis.gov/files/article/qa_international_adjudication_support_branch_19may09.pdf.

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12. USCIS Issues Court Notice to Pending I-360 Religious Workers

On June 11, 2009, the U.S. District Court for the Western District of Washington issued an order in Ruiz-Diaz v. U.S., finding that 8 CFR § 245.2(a)(2)(i)(B), which does not allow religious workers to concurrently file an Application to Register Permanent Residence or Adjust Status (Form I-485), was invalid and unenforceable. The court has ordered USCIS to accept properly filed I-485s and I-765s from beneficiaries of religious worker I-360 petitions. The court order also allows individuals whose concurrent filings were rejected previously to reapply for adjustment of status. The order accords a spouse and children of I-360 beneficiaries the same benefits.

A June 25, 2009, USCIS memo implementing the decision and providing information about filing applications for foreign religious workers with pending I-360s is available at http://www.uscis.gov/files/nativedocuments/Ruiz-Diaz_Implementation_25jun09.pdf.

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13. Publications and Items of Interest

U.S. Citizenship and Immigration Services (USCIS) Acting Director Michael Aytes issued a response on June 12, 2009, to the USCIS ombudsman’s EB-5 recommendations. Among other things, the ombudsman recommended that USCIS update its regulations. USCIS acknowledged that the regulations governing the EB-5 program need to be updated. USCIS said it will re-examine its current resources in relation to its ability to promulgate new regulations versus statutory mandates and other existing priority regulations that are currently in progress. The USCIS response is available at http://www.dhs.gov/xlibrary/assets/uscis_response_cisomb_rec_40.pdf.
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14. Recent News from ABIL Members

Four members of the Alliance of Business Immigration Lawyers were listed by Human Resource Executive Online as among the nation’s 10 most important employment attorneys in the field of immigration law. The ABIL attorneys listed include H. Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm), Angelo A. Paparelli (bio: https://www.abil.com/lawyers/lawyers-paparelli.cfm), Julie Pearl (bio: https://www.abil.com/lawyers/lawyers-pearl.cfm), and Bernard P. Wolfsdorf (bio: https://www.abil.com/lawyers/lawyers-wolfsdorf.cfm).

The list is available at http://www.hreonline.com/pdfs/090516Chart2_Immigration.pdf.

Steve Trow (bio: https://www.abil.com/lawyers/lawyers-trow.cfm) spoke on “U.S. Immigration and Citizenship Planning for High Net-Worth Clients” at the Practising Law Institute’s International Estate & Tax Planning Conference in New York City on June 2, 2009. Mr. Trow also spoke on “Green Cards in Light of the Exit Tax” and “Accidental American Citizens” at the June 22, 2009, meeting of the Mid-Atlantic Chapter of the Society of Trust and Estate Practitioners.

Mr. Trow was elected to the Board of Directors of the British American Business Association (BABA) in Washington, DC, on June 24, 2009. BABA is the premier forum for British and American business professionals in the mid-Atlantic region to exchange information, establish networks, and pursue mutual interests.

Cyrus Mehta (bio: https://www.abil.com/lawyers/lawyers-mehta.cfm) spoke at the AILA Web Seminar on June 23, 2009. His panel’s topic was “Maintaining LPR Status to Become a U.S. Citizen.” For more information, see http://eo2.commpartners.com/users/aila/register.php?id=2681.

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15. 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/jsps/ptimes.jsp

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 Updates Progress Toward H-1B Cap -USCIS has received approximately 45,700 H-1B petitions toward the H-1B cap for FY 2010.

2. USCIS Announces Extension of J-1 Entry Date for International Medical Graduates to Qualify for “Conrad 30” – The date by which international medical graduates must have been granted J-1 nonimmigrant status to later qualify for “Conrad 30” has been extended to September 30, 2009.

3. DOL Keeping Pre-iCERT LCA System Operational Through June 30 – The Department of Labor says it has remedied some problems with the new iCERT online labor condition application system.

4. USCIS Extends Non-Minister Special Immigrant Religious Worker Program – The non-minister special immigrant religious worker program is extended through September 29, 2009.

5. State Dept. Updates Visa Availability for Remainder of Year – Visa availability during the final fiscal quarter could become limited as categories approach their annual numerical limits.

6. USCIS Revises Filing Instructions and Direct Mail Program for Application to Replace Green Card – The revised filing instructions require applicants to submit supporting documentation with their applications.

7. New Border Document Requirements in Effect June 1 – New document requirements went into effect on June 1, 2009, for entry into the U.S. at land or sea ports.

8. Supreme Court Rules Fake IDs Not Necessarily ‘Identity Theft’ – The Supreme Court ruled that using counterfeit identification cards to gain employment does not necessarily constitute identity theft.

9. Federal Court Finds Surviving Spouses Are Entitled to Immediate Relative Status – The court found that plaintiffs residing in the Ninth and Sixth Circuits are entitled to immediate relative classification as surviving spouses of deceased U.S. citizens.

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

11. Government Agency Links – Government Agency Links

Details:

1. USCIS Updates Progress Toward H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced that as of May 22, 2009, it has received approximately 45,700 H-1B petitions toward the congressionally mandated 65,000 H-1B cap for the fiscal year (FY) 2010 program. The agency continues to accept petitions subject to the general cap.

Additionally, the agency said it has received approximately 20,000 petitions for those with advanced degrees; however, it continues to accept advanced degree petitions “since experience has shown that not all petitions received are approvable.” Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.

USCIS will provide regular updates on the processing of FY 2010 H-1B petitions. The updates are available on the USCIS Web site at http://www.uscis.gov/h-1b_count.

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2. USCIS Announces Extension of J-1 Entry Date for International Medical Graduates to Qualify for “Conrad 30”

U.S. Citizenship and Immigration Services (USCIS) issued a reminder that the date by which international medical graduates must have been granted J-1 nonimmigrant status to later qualify for the “Conrad 30” program has been extended to September 30, 2009. Before this latest extension was granted, the most recent sunset date for qualifying J-1 admission was March 6, 2009.

Under the Conrad 30 program, each state health department may submit a request directly to the Department of State (DOS) to initiate the waiver process for a J-1 medical doctor. This request enables J-1 doctors to obtain a waiver of the two-year foreign residence requirement, if the DOS submits a favorable recommendation to USCIS, and generally will be granted “as long as there are no underlying concerns.” Once the waiver is granted, J-1 doctors must practice medicine for at least three years in a medically underserved shortage area or areas. The Department of Health and Human Services designates the medical shortage areas.

The Conrad 30 (originally Conrad 20) program was established in 1994 to address the shortage of qualified doctors in medically underserved areas, and has been extended several times since then. In 2004, Congress amended the program to exempt J-1 doctors who received a Conrad 30 waiver from the annual H-1B cap, because these doctors must complete their required three-year period of service as H-1B nonimmigrants.

The new sunset date of September 30, 2009, applies to the date the medical doctor originally entered the U.S. in J-1 status or received a change of status to J-1 to complete a residency program in the U.S. Doctors who acquired J-1 status before that date may pursue a waiver of the two-year foreign residence requirement under the Conrad State 30 program if they meet all the eligibility requirements.

The USCIS reminder is available at http://www.uscis.gov/files/article/conrad-30-5-11-09.pdf.

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3. DOL Keeping Pre-iCERT LCA System Operational Through June 30

On May 9, 2009, during a conference call, the Department of Labor recently told several organizations that it has remedied some problems with the new iCERT online labor condition application system, but will keep the old LCA system operational through June 30, 2009, to allow sufficient transition time to the new online system for filing LCAs using the new ETA-9035.

The iCERT portal is at http://icert.doleta.gov/. Technical issues should be raised via [email protected].

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4. USCIS Extends Non-Minister Special Immigrant Religious Worker Program

U.S. Citizenship and Immigration Services (USCIS) has extended the non-minister special immigrant religious worker program through September 29, 2009. The program had expired on March 6, 2009.

The extended category covers special immigrant religious workers in professional or non-professional capacity within a religious vocation or occupation. The extended date also applies to accompanying spouses and children of these non-ministers. Workers entering the U.S. only to continue the vocation of a religious minister are not affected by the expiration date.

USCIS will receive and process Petitions for Amerasian, Widow(er), or Special Immigrant (Forms I-360) for those religious workers affected by the expiration of the program. USCIS also will process Applications to Register Permanent Residence or Adjust Status (Forms I-485) based on approved I-360 petitions for non-minister special immigrant religious workers.

Applications for Action on an Approved Application or Petition (Forms I-824) requesting “following-to-join” individuals whose basis for the adjustment was an approved I-360 SR petition for a non-minister category, or requesting an approved I-360 SR petition to be sent to the State Department’s National Visa Center, will continue to be accepted and processed as well, USCIS said.

Unless Congress extends the expiration date of the program, beginning September 30, 2009, USCIS will suspend processing of any pending Forms I-360, I-485, and I-824 affected by the expiration, and will reject all petitions and applications for this program received on or after that date.

The USCIS notice is available at http://www.uscis.gov/files/article/NonMinister_Religious_Worker_Program%20Extended.pdf.

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5. State Dept. Updates Visa Availability for Remainder of Year

The Department of State’s Visa Bulletin for June notes that applicant demand for visa numbers, primarily for adjustment of status cases at U.S. Citizenship and Immigration Services offices, has been extremely heavy throughout the year. As a result, visa availability during the final fiscal quarter could become limited as categories approach their annual numerical limits. Therefore, the Department said, visa availability throughout the remainder of the year cannot be guaranteed and the establishment of cut-off dates, or retrogression of existing cut-off dates, cannot be ruled out. The employment-based third preference and “Other Workers” categories are unavailable for June, and are expected to remain that way until October 1, when the new federal fiscal year begins.

All other employment-based categories are Current, except for China-mainland born second preference, which has a cut-off date of February 15, 2005, and India second preference, which has a cut-off date of January 1, 2000. The Department noted that it was necessary to retrogress the India employment second preference cut-off date more than four years, from February 15, 2004, in the May Bulletin to January 1, 2000, in the June Bulletin, to keep visa issuances within the annual category numerical limit. The Department said it is unsure whether this retrogression will apply throughout the remainder of the fiscal year.

The Visa Bulletin for June is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4497.html.

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6. USCIS Revises Filing Instructions and Direct Mail Program for Application to Replace Green Card

U.S. Citizenship and Immigration Services (USCIS) has changed the filing location and filing instructions for the Application to Replace Permanent Resident Card (Form I-90). The revised filing instructions require applicants to submit supporting documentation with their applications. Before this change, applicants were instructed to bring their supporting documentation to their biometrics appointments. The notice also revises the Direct Mail address for the I-90. Applicants must now file their I-90s and supporting documentation with the USCIS Lockbox facility in Phoenix, Arizona.

This change in filing location affects all I-90 applicants filing a paper form, including those applicants filing the I-90 because their previously issued card was never received or because their existing card has incorrect data due to a USCIS error. This notice does not affect applicants filing an I-90 electronically or whose place of residence is outside the U.S.

As noted above, applicants now must submit their I-90s and supporting documentation to the USCIS Lockbox facility in Phoenix for initial processing, using the following addresses:

USCIS
P.O. Box 21262
Phoenix, AZ 85036

For USPS Express Mail and Courier Service deliveries, use the following address:

USCIS
Attn: I-90
1820 Skyharbor Circle S Floor 1
Phoenix, AZ 85034

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=21079cb6ab8e0210VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The updated I-90 instructions are available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=b3f7ab0a43b5d010VgnVCM10000048f3d6a1RCRD&vgnextchannel=db029c7755cb9010VgnVCM10000045f3d6a1RCRD and http://www.uscis.gov/files/form/i-90instr.pdf. The form is available at http://www.uscis.gov/files/form/i-90.pdf. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1e229cb6ab8e0210VgnVCM1000004718190aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. The Federal Register notice is available at http://edocket.access.gpo.gov/2009/E9-9620.htm.

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7. New Border Document Requirements in Effect June 1

U.S. Customs and Border Protection (CBP) issued a reminder to U.S. and Canadian citizens that new document requirements took effect on June 1, 2009, for entry into the U.S. at land or sea ports under the Western Hemisphere Travel Initiative (WHTI). CBP said it is committed to working with travelers to ensure that they have access to, and can obtain, appropriate travel documents. Those who lack WHTI-compliant documents but are otherwise admissible “will not be denied entry into the United States on June 1, and are encouraged to continue with their travel plans and to obtain facilitative and secure WHTI travel documents as soon as possible,” CBP said.

WHTI-compliant documents include:

• U.S. or Canadian passports
• Trusted Traveler Cards (NEXUS, SENTRI, or FAST/EXPRES);
• U.S. Passport Cards
• State or province-issued Enhanced Driver’s Licenses (when and where available)

Children under age 16 arriving by land or sea from Canada, Mexico, or the Caribbean need only present proof of citizenship, such as an original copy of a birth certificate, a consular report of birth abroad, a naturalization certificate, or a Canadian citizenship card. Document requirements for permanent residents of the U.S. remain unchanged, and such persons should continue to present their Permanent Resident Card (Form I-551).

The CBP notice is available at http://www.cbp.gov/xp/cgov/newsroom/news_releases/05202009.xml.

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8. Supreme Court Rules Fake IDs Not Necessarily ‘Identity Theft’

On May 4, 2009, the Supreme Court ruled that using counterfeit identification cards to gain employment does not necessarily constitute aggravated identity theft.

In 2000, to secure employment, Ignacio Flores-Figueroa, a Mexican citizen, gave his employer counterfeit Social Security and green cards that showed his name but included other people’s identification numbers. He was arrested and charged with two immigration offenses, along with aggravated identity theft. The government noted that the applicable law imposes a mandatory prison term on certain offenders if they “knowingly…use[ ], without lawful authority, a means of identification of another person.” Mr. Flores-Figueroa argued that the government could not prove that he knew the numbers on the counterfeit documents were assigned to other people, but the government responded that it need not prove such knowledge.

The Supreme Court said it had granted certiorari to consider the knowledge issue, a matter about which the Circuits have disagreed. The Court, extensively citing English grammar, concluded that the law requires the government to show that the defendant knew that the means of identification at issue belonged to another person. The Court reversed the judgment of the Court of Appeals and remanded the case “for further proceedings consistent with this opinion.”

The case is available at http://www.supremecourtus.gov/opinions/08pdf/08-108.pdf.

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9. Federal Court Finds Surviving Spouses Are Entitled to Immediate Relative Status

On May 1, 2009, a California federal court ruled on a national class action lawsuit challenging the “widow penalty.” The court found that plaintiffs residing in the Ninth and Sixth Circuits are entitled to immediate relative classification as surviving spouses of deceased U.S. citizens. The court said the “defendants are cautioned that they may not use factors arising from their improper denial of plaintiffs’ applications to again deny the petition and application upon reopening them…Defendants are hereby ordered to reopen the immediate relative petitions and applications for adjustment of status and immigrant visas of plaintiffs in the Sixth and Ninth Circuits, and to adjudicate them in a manner consistent with the holding of the Court.”

The case is available at http://ssad.org/images/Hootkins_Order_Final_SJ.pdf.

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10. Recent News from ABIL Members

Mark Ivener (bio: https://www.abil.com/lawyers/lawyers-ivener.cfm) participated on a panel, Planning for Immigration and Expatriation, at the 2nd Annual STEP (Society of Trust & Estate Practitioners) Pacific Rim Conference in San Francisco on May 7-8, 2009.

H. Ronald Klasko (bio: https://www.abil.com/lawyers/lawyers-klasko.cfm) recently spoke to members of the Brooklyn Board of Realtors in New York regarding the U.S. regional center EB-5 visa program. The program is of interest to realtors because many international real estate buyers want to retire and live year-round in the U.S. The regional center EB-5 program allows them to accomplish these goals. Mr. Klasko also spoke at the Mid Winter Business Meeting of the Florida Association of Realtors in Orlando about immigration options for foreign investors.

Mr. Klasko also spoke at the Annual Immigration Law Conference of the American Immigration Lawyers Association’s South Florida Chapter. Mr. Klasko spoke on three panels on the topics of options for wealthy investors; client development and management in difficult economic times; and the E-Verify program.

Klasko, Rulon, Stock & Seltzer LLP announced the launch of its new micro-site dedicated to providing employers with “need-to-have” resources to stay in compliance with U.S. immigration laws. The new site, http://www.worksite-compliance.com, provides extensive information to businesses on federal and state worksite compliance laws, I-9 enforcement, E-Verify, Social Security no-match letters, and H-1B Labor Condition Application compliance issues.

Special features on the site include:

• An I-9 Desk Reference Handbook (covering employee verification, employer sanctions, and anti-discrimination laws)
• An E-Verify state-by-state legislation survey

Last month, the firm launched an interactive immigration blog (http://blog.klaskolaw.com).

Stephen Yale-Loehr (bio: https://www.abil.com/lawyers/lawyers-loehr.cfm), recently spoke to 150 members of the New York City chapter of the American Immigration Lawyers Association (AILA) about the EB-5 immigrant investor visa program.

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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/jsps/ptimes.jsp

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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