Pearl Law Group

Human Resources Immigration Update (February 2, 2012)

pearllawgroup — Tue, 21 Feb 2012 20:12:22 +0000

Human Resources Immigration Update

(February 2, 2012)

Recognized for fast and creative approaches to global immigration, Pearl Law Group brings you this message. We thank you for trusting us as an immigration resource, and we welcome your comments and questions.

Our updates are for informational purposes only, and should not be used to take legal action without consulting counsel.

Upcoming DHS Reforms Geared to Attracting and Retaining Highly Skilled Immigrants

As a reflection of the President’s commitment to fixing our broken immigration system so that it meets our 21st century national security and economic needs, the Department of Homeland Security (DHS) this week announced a series of administrative reforms to help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world. These proposals, which include expanding the scope of OPT extensions and allowing certain spouses of H-1B employees to work, will likely take several months to go into effect.

Expand Eligibility for OPT Extensions

Presently, F-1 students may engage in optional practical training (OPT) for 12 months, although those who graduate in STEM programs can obtain a 17-month OPT extension if their degree is included on the DHS eligibility list of STEM programs. The proposed change would expand eligibility for OPT extension by including students with a prior U.S. STEM degree. Furthermore, DHS will continue to review emerging fields for possible inclusion in the list of eligible STEM degree programs.

Allow Part-time Study for Spouses of F-1 Students

This regulatory reform would allow F-2 spouses to enroll in additional academic classes on a part-time basis while their spouse is pursuing full-time studies; currently, dependent spouses may only take part-time vocational or recreational classes.

Provide Work Authorization for Spouses of Certain H-1B Holders

The proposed change would allow spouses of H-1B visa holders to work while awaiting AOS adjudication. Specifically, employment for H-4 dependents will be authorized if their H-1B spouses have begun the process of seeking employment-based lawful permanent resident status after meeting a minimum period of H-1B status in the U.S.

Allow a Broader Scope of Evidence for Outstanding Professors and Researchers

The proposed change would increase the types of evidence employers can submit to demonstrate that a professor or researcher is among the very best in their field. Presently, applicants for the employment-based immigrant visa category of “outstanding professors and researchers” are limited to specific types of evidence listed by regulation; this change would allow “comparable evidence” beyond the specifically articulated regulatory list.

Allow E-3 and H-1B1 Visa Holders to Continue Working While Their Extension of Status Petitions are Pending

The proposed regulation would treat E-3 and H-1B1 visa holders the same as L-1 other H-1B visa holders by allowing them to continue employment with their current employer for up to 240 days from the expiration of their authorized period of stay, if a petition to extend their status has been timely filed.

Launch Entrepreneurs in Residence initiative

On February 22, 2012, USCIS will launch its Entrepreneurs in Residence initiative with an Information Summit in Silicon Valley, which will bring together high-level representatives from the entrepreneurial community, academia and federal government agencies to discuss how to maximize current immigration laws’ potential to attract foreign entrepreneurial talent. The Information Summit will focus on ensuring that immigration pathways for foreign entrepreneurs are clear and consistent and better reflect today’s business realities, and will include a special recognition of outstanding contributions made by immigrant entrepreneurs to our nation’s economic growth and prosperity. The input gathered at the summit will inform the work of the Entrepreneurs in Residence tactical team, which will bring business experts in-house to work alongside USCIS staff for a period of approximately 90 days.

December 2011

pearllawgroup — Thu, 29 Dec 2011 01:24:46 +0000

Pearl Global Immigration NewsFlash

December 2011

AUSTRALIA

The Australian government has announced new visa application fees, to be effective January 1, 2012. The fees for a number of visa categories will be increased by five to fifteen percent, in an effort by the government to lessen the burden of the visa system on the local taxpayers. The most common Subclass 457 Business Long Stay visa fee has been increased from $305 to $350. There are additional plans in 2013 to charge a fee for each dependent family member’s visa application, which are currently included with the principal’s application. Please check with the DIAC for the most current visa fees based on the visa categories: www.immi.gov.au.

CHINA

The Chinese government plans to crack down on expats working illegally in their country. The outdated laws on exit and entry administration are being updated to address the increasing problem of illegal employment of foreigners in China. In addition to fines and detainment of foreigners, employers will also face significant fines. See the full article at www.shanghaidaily.com.

EUROPEAN UNION

RESTRICTIONS EXTENDED FOR BULGARIAN & ROMANIAN NATIONALS

While Bulgaria and Romania joined the European Union (EU) in 2007, the other full member EU countries were permitted to limit these two countries’ access to the local labour market during the seven year transition period. Four years after their accession (2011), the full member countries were required to review the restrictions and only be allowed to extend the limits if there were adverse impacts to the labour market.

Germany

The German government has made a decision to require Bulgarian and Romanian nationals to continue to require work permits to take up employment in Germany through 2013. However, beginning January 1, 2012, Bulgarians and Romanians who hold a university-level degree that is relevant to their proposed position in Germany will be exempt from the work permit requirement.

Netherlands

The Dutch cabinet agreed on November 18, 2011, not to open the Dutch labour market to Bulgarian and Romanian labour migrants until January 1, 2014. This implies that their employers will still need a work permit until that date. The cabinet is against the free movement of persons for this group because of rising unemployment in the Netherlands and a recession. After January 1, 2014, the agreement on the free movement of persons within the European Union will also apply to Bulgarian and Romanian nationals.

United Kingdom

The UK Border Agency announced on November 23, 2011, that they will be extending the restrictions placed on Bulgarian and Romanians nationals seeking employment in the UK until the end of 2013. Romanian and Bulgarian nationals will need to continue to obtain work authorization before working in the UK.

LAUNCH OF A NEW EU IMMIGRATION PORTAL

The European Union (EU) Immigration Portal contains practical information for foreigners intending to move to the EU. The website includes specific immigration information for every EU Member State and for every category of foreigner (from highly skilled migrant to family reunification). The website is an initiative by the European Commission and was launched on November 18, 2011. See http://www.ec.europa.eu/immigration.

*Special thanks to our ABIL colleagues for contributions to this update.

NETHERLANDS

CHANGES FOR HIGHLY SKILLED MIGRANTS

Salary thresholds for 2012. The salary thresholds for highly skilled migrants (knowledge migrants) as of January 1, 2012, have been published. Foreigners aged 30 or older must earn a gross annual salary of €51,239 to be eligible for a residence permit to work as a highly skilled migrant. For foreigners under the age of 30, the highly skilled migrant salary threshold is €37,575. For graduates in the Netherlands, the threshold is €26,931.

Pilot short stay. Short stays for highly skilled migrants will become possible after January 1, 2012. A pilot program will run for two years. “Short stay” is defined as a stay for less than three months. Only employers already accepted in the Highly Skilled Migrant Scheme may participate in this pilot. The highly skilled migrant salary threshold for foreigners 30 years and older (in 2011 €50,619) will also be the threshold for a short stay as a highly skilled migrant, prorated for the period that is worked.

The employer must apply for a work permit. The Labour Directorate strives to issue this within two weeks. The Labour Directorate will also assess the job function of the highly skilled migrant.

Salary. The Dutch Parliament has raised questions about the requirement that as of June 19, 2011, the salary of a highly skilled migrant must be at market level. Does it make the Netherlands less attractive to such migrants? The Minister of Social Affairs thinks not. The assessment of whether the salary of the highly skilled migrant is at market level will only be performed in cases where the Immigration Service suspects fraud. So far, the Immigration Service has not rejected any application based on this new ground. The Minister reiterated that highly skilled migrants must only fulfill one criterion: the salary threshold.

*Special thanks to our ABIL colleagues for this update.

SWITZERLAND

The Work Permit Quota for 2012 will remain the same as in 2011. The Swiss Federal Council sets quotas for the number of foreign nationals who are authorized to work in Switzerland every year. The quota does not affect extension applications, only first time applicants and those converting to new categories. Of the 12,000 set quota, B Permits for long-term assignments will be capped at 4,000 and L permits at 8,000. There are separate quotas available for EU and EFTA (European Free Trade Association) members.

Volume 130 (December 15, 2011)

pearllawgroup — Sat, 17 Dec 2011 03:55:06 +0000

Pearl Immigration NewsFlash

General Release Vol. 130 (December 15, 2011)

Thanks for trusting Pearl Law Group and the Alliance of Business Immigration Lawyers (ABIL) for your business immigration updates. As always, we welcome your comments and questions.

Headlines (Details below)

DOS Announces Forward Movement in China and India EB-2 Categories — USCIS reported that the rate of new filings is currently far below their expectations, prompting enormous movement of the cut-off date for January and potentially beyond.

Sen. Grassley Puts “Hold” on Per-Country Limits Legislation — Sen. Grassley said that he has “concerns about the impact of this bill on future immigration flows.”

DOS Implements Fee Increases for Certain Consular Services — Affected services include machine-readable visas and border crossing cards.

ABIL Issues Tips for Travelers — If you are planning an international trip in the near future, ABIL offers tips.

Details…

DOS Announces Forward Movement in China and India EB-2 Categories

The Department of State’s Visa Bulletin for January 2012 shows the China and India employment second preference cut-off date advancing at a rapid rate. The bulletin states this action is intended to generate significant levels of new filings for adjustment of status at U.S. Citizenship and Immigration Services offices, which has reported that the rate of new filings “is currently far below that which they had anticipated, prompting an even more aggressive movement of the cut-off date for January and possibly beyond.” While this action increases the potential for an eventual retrogression of the cut-off at some point next year, it also provides the best opportunity to use all numbers available under the annual limit. January Visa Bulletin: http://www.travel.state.gov/visa/bulletin/bulletin_5630.html.

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Sen. Grassley Puts “Hold” on Per-Country Limits Legislation

On November 29, 2011, the U.S. House of Representatives voted 389-15 in favor of ending per-country numerical limits on employment-based visas and the Senate was expected to take action; however, Sen. Charles Grassley (R-IA) has placed a hold on the bill. (A hold is an informal practice and the majority leader need not follow it, but a hold indicates that the opposing senator may filibuster any motion to proceed.)

Sen. Grassley said that he has “concerns about the impact of this bill on future immigration flows, and am concerned that it does nothing to better protect Americans at home who seek high-skilled jobs during this time of record high unemployment.” The bill would eliminate a current provision stating that employment-based visas issued cannot exceed seven percent of the total for any one country. The measure was expected to benefit skilled Indian and Chinese workers and high-tech companies in the United States.

For the text of the House-passed bill, H.R. 3012, see http://www.gpo.gov/fdsys/pkg/BILLS-112hr3012rh/pdf/BILLS-112hr3012rh.pdf. The companion Senate bill, introduced by Sen. Mike Lee (R-UT), is S. 1857.

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DOS Implements Fee Increases for Certain Consular Services

On December 6, 2011, the Department of State implemented changes to the Schedule of Fees for Consular Services, including nonimmigrant visas and border crossing cards.

The final rule on fees changes the fee charged for most non-petition-based nonimmigrant visas (Machine-Readable Visas or MRVs) and adult Border Crossing Cards (BCCs) from $131 to $140. The rule also provides new tiers of the application fee for certain categories of petition-based nonimmigrant visas and treaty trader and investor visas. Finally, the rule increases the BCC fee charged to Mexican citizens under age 15 who apply in Mexico and whose parent or guardian already has a BCC or is applying for one, from $13 to $14.

A list of Department fees can be found here: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&rgn=div5&view=text&node=22:1.0.1.3.21&idno=22#22:1.0.1.3.21.0.1.1.

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ABIL Issues Tips for Travelers

If you are planning an international trip in the near future, the Alliance of Business Immigration Lawyers (ABIL) offers the following tips:

review travel documentation to ensure your re-entry into the United States will go smoothly;

plan visa application appointments in advance, prepare all necessary documentation and apply early;

if you are an AOS applicant, obtain advance parole but check with your ABIL attorney first to ensure that international travel does not bar readmission;

apply ASAP via the Electronic System for Travel Authorization (for Visa Waiver Program travelers).

Contact your ABIL attorney for advice in specific situations.

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Volume 129 (December 6, 2011)

pearllawgroup — Thu, 08 Dec 2011 19:58:16 +0000

Pearl Immigration NewsFlash

General Release Vol. 129 (December 6, 2011)

Thanks for trusting Pearl Law Group and the Alliance of Business Immigration Lawyers (ABIL) for your business immigration updates. As always, we welcome your comments and questions.

Headlines (Details below)

H-1B Cap for FY 2012 Reached — New H-1B employees will have to wait until April 1, 2012, to file.

Employers May Bundle L-1 Filings — USCIS will consider multiple L-1 applications grouped into “bundles” as part of an effort to streamline and improve adjudication.

House Votes to End Per-Country Limits on Employment-Based Immigration Visas — The number of green cards issued each year would stay the same.

DOL Current on PERM, H-1B Prevailing Wage Determinations — Per the Labor Department, a prevailing wage determination is “current” if it is issued within 60 days of submission.

F, M and J Visa Processing Resumes; Expedited Processing and Record Numbers of Students Announced — The 2010/11 academic year showed a record number of international students attending American colleges and universities.

Details…

H-1B Cap for FY 2012 Reached

U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory numerical limit (cap) of 65,000 for fiscal year (FY) 2012. November 22, 2011, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2012; properly filed cases are considered received on the date that USCIS physically receives the petition, not the date the petition was postmarked.

A month earlier, USCIS had received more than 20,000 H-1B petitions filed on behalf of persons under the advanced degree exemption. USCIS will continue to accept and process cap-exempt petitions (those from institutes of higher learning and nonprofit or governmental research organizations) and petitions filed on behalf of current H-1B workers, which are petitions that:

extend the amount of time a current H-1B worker may remain in the U.S.;

change the terms of employment for current H-1B workers;

allow current H-1B workers to change employers; and

allow current H-1B workers to work concurrently in a second H-1B position.

Petitions for “new employment” of an H-1B worker—that is, for employment of a person who is not yet in H-1B status with another employer—will be accepted again on April 1, 2012. Those petitions and all petitions received after April 1, 2012, must request employment starting October 1, 2012, which is the beginning of the governmental fiscal year (FY 2013).

Global employers now affected by the U.S. cap may want to consider hiring potential H-1B employees to work in other countries. Contact your Pearl attorney for guidance in specific cases.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f0a78614e90d3310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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Employers May Bundle L-1 Filings

USCIS said recently that it recognizes that businesses may need to utilize the L-1 nonimmigrant classification to temporarily move multiple employees to the United States for particular projects that require the employees’ specialized knowledge. While each L-1 petition must be considered on its own merits, USCIS will consider multiple applications grouped into “bundles” as part of an effort to streamline and improve adjudication.

For USCIS to consider the bundle, all included L-1B petitions must be for employees working on the same project, at the same location and who have the same specialized knowledge duties. Further, they will consider petitions for L-1A managers included with the bundle if they will be managing the L-1B beneficiaries working on the project. USCIS will also consider any qualifying dependents included in the bundle.

USCIS has offered filing tips for bundled L-1 petitions, available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e2260dbba1563310VgnVCM100000082ca60aRCRD&vgnextchannel=bfd10b89284a3210VgnVCM100000b92ca60aRCRD.

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House Votes to End Per-Country Limits on Employment-Based Immigrant Visas

On November 29, 2011, the U.S. House of Representatives voted 389-15 in favor of ending per-country numerical limits on employment-based visas and raising those on family-based visas from seven to 15 percent. The bill does not raise the number of visas issued but would eliminate the current provision stating that employment-based visas issued cannot exceed seven percent of the total for any one country; instead, permanent residence visas (green cards) would be handled on a first-come, first-served basis. Groups representing immigrants said the bill would do little to resolve pressing immigration issues; however, they applauded Congress for showing it can act. Currently, USCIS issues about 140,000 green cards a year to foreign nationals working in the United States, often after getting degrees from U.S. universities.

Kevin Richards, Senior Vice President of Tech America, which represents the technology industry, said in a letter to lawmakers that the lengthy waiting periods for people trained and working in the United States “are contributing to a reverse brain drain in the U.S. as frustrated professionals opt to return to their home countries to pursue their professional ambitions.” U.S. employers are prohibited by law from hiring foreign workers unless they show there are not sufficient U.S. workers willing and able to take the jobs.

The measure is likely to benefit skilled Indian and Chinese workers and high-tech companies in the United States. Similar legislation is currently before the Senate Judiciary Committee as S. 1857, the Fairness for High-Skilled Immigrants Act. For the text of H.R. 3012, the House bill of the same name, see http://www.gpo.gov/fdsys/pkg/BILLS-112hr3012rh/pdf/BILLS-112hr3012rh.pdf.

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DOL Current on PERM, H-1B Prevailing Wage Determinations

The Department of Labor’s (DOL) Office of Foreign Labor Certification recently announced that PERM and H-1B prevailing wage determinations are now current and they expect H-2B prevailing wage determinations to become current imminently.

DOL explained that “current” has a different meaning depending on the program: In the PERM and H-1B programs, a prevailing wage determination is considered current when it is issued within 60 days of submission; for H-2B prevailing wage determinations, current is within 30 days of submission. The PERM program became current the week of October 23, 2011, and the H-1B program became current the week of November 6, 2011. DOL noted that the dates may be subject to change based on unanticipated actions, such as any additional judicial determinations or legislative actions, and added that appeals are being processed as resources allow, with priority placed on becoming current on initial prevailing wage determination requests.

The notice is available under “November 17, 2011,” at http://www.foreignlaborcert.doleta.gov/news.cfm.

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F, M and J Visa Processing Resumes; Expedited Processing and Record Numbers of Students Announced

The Department of State (DOS) recently identified difficulties with its Consolidated Consular Database communications with the Student and Exchange Visitor Program’s (SEVP) Student and Exchange Visitor Information System. DOS discovered this issue on November 14, 2011, and subsequently instructed embassies and consulates worldwide to temporarily halt the issuance of all F, M and J visas. SEVP and DOS resolved these difficulties on November 18, 2011, and the State Department instructed consular posts to immediately resume issuing the affected visas.

In a separate announcement on November 14, 2011, DOS stated that “[a]ll U.S. embassies and consulates expedite visa processing for foreign students to ensure qualified students are able to begin their academic program on time.” According to DOS, the maximum wait for a student visa appointment is now less than 15 days worldwide. Foreign students may apply for their visas up to 120 days before their academic programs begin and the State Department encourages them to apply early.

According to the Institute of International Education (IIE), international students attending American colleges and universities rose to a record 723,277 in the 2010/11 academic year. The five percent rise over the previous academic year was fueled by a sharp increase in the number of Chinese students coming to the U.S. Chinese students increased by 23 percent altogether and by 43 percent at the undergraduate level. IIE reported that Chinese student enrollment rose to a total of nearly 158,000 students, almost 22 percent of the total international student population in the United States, making China the leading sending country for the second year in a row; students from India, the second largest international contingent in the United States, decreased by one percent to a total of nearly 104,000. IIE noted Department of Commerce statistics showing that international students contribute more than $21 billion to the U.S. economy through tuition and living expenditures.

According to IIE, the University of Southern California is the leading host institution for the 10th year in a row, with 8,615 international students in academic year 2010/11; University of Illinois at Urbana-Champaign hosts the second highest number of foreign students (7,991), with New York University a very close third (7,988). California remains the leading host state for international students (96,535, up 2 percent), followed by New York (78,888, up 4 percent) and then Texas (61,636, up 5 percent).

The notice announcing resumption of F, M and J issuances is available at http://www.nafsa.org/uploadedFiles/BM%20111-02%20combined.pdf. The notice announcing expedited student visa processing is available at http://www.state.gov/r/pa/prs/ps/2011/11/177132.htm. The notice announcing the IIE statistics and trends on international students is available at http://www.iie.org/en/Who-We-Are/News-and-Events/Press-Center/Press-Releases/2011/2011-11-14-Open-Doors-International-Students.

Volume 128 (November 8, 2011)

pearllawgroup — Wed, 09 Nov 2011 04:18:44 +0000

Pearl Immigration NewsFlash

General Release Vol. 128 (November 8, 2011)

Thanks for trusting Pearl Law Group and the Alliance of Business Immigration Lawyers (ABIL) for your business immigration updates. As always, we welcome your comments and questions.

Headlines (Details below)

FY2012 H-1B Numbers Going Fast — Once the cap numbers are gone, April 1, 2012, will be the next chance to file.

EB-2 Dates for China and India Jump — The November EB-2 cut-off date for China and India is the most favorable since August 2007.

“Fairness for High-Skilled Immigrants Act” Heads to House Floor — The bill would eliminate the per-country numerical limitation for employment-based immigrants and increase the numbers for family-based applications.

EAD Card and Certificate of Citizenship Redesigned — USCIS expects more than a million people to receive the new documents by the end of 2012.

Details…

FY2012 H-1B Numbers Going Fast

As of November 2, 2011, U.S. Citizenship and Immigration Services (USCIS) has accepted (approved or pending) 50,800 H-1B petitions subject to the 65,000 cap for fiscal year (FY) 2012. Up to 6,800 visas are set aside from the 65,000 cap during each fiscal year for the H-1B1 program under the terms of legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements.

Also, the 20,000 cap for those with advanced U.S. degrees was reached before the end of October; by contrast, last year only 16,700 had been used by then.

ABIL recommends that employers needing H-1B workers file quickly—once the cap is reached, the next opportunity to file will be April 1, 2012, for work starting October 1, 2012 (FY 2013).

Contact your Pearl Law attorney for details. More information on the cap count is available at http://www.uscis.gov/h-1b_count.

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EB-2 Dates for China and India Jump

From the Department of State’s Visa Bulletin for November 2011:

The November employment-based second preference cut-off date for applicants from China and India is the most favorable since August 2007. This advancement is expected to generate significant levels of demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices. While significant future cut-off date movements are anticipated, they may not be made on a monthly basis. Readers should not expect such movements to be the norm throughout the fiscal year, and an eventual retrogression of the cut-off at some point during the year is a distinct possibility.

In recent remarks, Charles Oppenheim of the Department of State’s Visa Office discussed predictions for employment-based visa numbers. Mr. Oppenheim anticipates that in December 2011, the EB-2 priority date for China and India will move to March 1, 2008, and there could be additional movement in January and February. After that, movement in these two categories will likely slow down and possibly retrogress.

Mr. Oppenheim predicted that the EB-3 category for All Countries, Mexico and Philippines should move forward one month each month of 2012. He expects the EB-3 category for China to advance one to three weeks per month for the near future.

Prospects for India’s EB-3 category look less promising. There are 54,000 cases that have been pending since 2007, and many more with subsequent priority dates that have not yet been filed. USCIS is allowed to adjudicate only 2,800 applications from India per year. This means potentially 225,000 to 300,000 people (including dependents) waiting for India EB-3 visa numbers. Mr. Oppenheim noted that more than 50 percent of all H-1Bs are given to Indian nationals each year and that the majority will apply for permanent residence.

Mr. Oppenheim said the EB-1 and 2 categories for All Countries, Mexico and Philippines, are expected to remain Current for some time. Last year there were 18,000 to 20,000 fewer cases filed in the EB-1 category, which allowed more EB-1 China and India petitions to move forward, along with some EB-2 adjustments from those countries.

The November Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5572.html.

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“Fairness for High-Skilled Immigrants Act” Heads to House Floor

On September 22, 2011, Rep. Jason Chaffetz (R-UT) introduced the “Fairness for High-Skilled Immigrants Act” (HR 3012) and the House Judiciary Committee approved the bill with changes on October 27. It now goes to the full House of Representatives for a vote. The bill would eliminate the per-country numerical limitation for employment-based immigrants over three years and increase it for family-based immigrants, from 7 percent to 15 percent per country. It also would amend the Chinese Student Protection Act of 1992 to eliminate the provision requiring the reduction of annual Chinese (PRC) immigrant visas to offset status adjustments under the Act.

In media releases, Rep. Chaffetz has said, “Per-country limits make no sense in the context of employment-based visas. Companies view all highly skilled immigrants as the same regardless of where they are from—be it India or Brazil. By removing per-country limits, American companies will be able to access the best talent.” He noted that the current percentage cap “has created a backlog of qualified workers.” Rep. Chaffetz pointed out that the legislation will not adversely affect the wages and working conditions of similarly employed workers in the US. but will “encourage high-skilled immigrants who were educated in the U.S. to stay and contribute to our economy, rather than taking the skills they learned and aiding our competitor nations.”

Co-sponsors of the bill include Reps. Tim Griffin (R-AZ), Zoe Lofgren (D-CA) and Lamar Smith (R-TX). It is supported by the U.S. Chamber of Commerce; Compete America, a coalition of high-tech companies, including Microsoft, Google and Oracle; various trade groups, including the Business Software Alliance, the Semiconductor Industry Association and the Information Technology Industry Council; and Immigration Voice, a leading coalition of highly skilled foreign professionals.

Rep. Chaffetz’s statement is available at http://chaffetz.house.gov/press-releases/2011/10/chaffetz-sponsored-immigration-bill-passes-house-judiciary-committee.shtml. The text of the bill is available at http://www.gpo.gov/fdsys/pkg/BILLS-112hr3012ih/pdf/BILLS-112hr3012ih.pdf.

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EAD Card and Certificate of Citizenship Redesigned

USCIS announced a redesigned Employment Authorization Document (EAD) and Certificate of Citizenship (Form N-560) with new security features. USCIS began issuing the new EADs on October 25, 2011, and the new N-560s on October 30. USCIS anticipates that more than a million people will receive the new documents by the end of next year.

USCIS will replace EADs already in circulation as individuals apply for their renewal or replacement. All previously issued EADs remain valid until the expiration date printed on the card; previously issued Certificates of Citizenship remain valid indefinitely.

USCIS said the new features of the EAD will better equip workers, employers and law enforcement officials to recognize the card as definitive proof of authorization to work in the United States. They worked closely with the Immigration and Customs Enforcement Forensic Document Laboratory to incorporate technology and tactile features to deter counterfeiting, tampering and fraud, and to facilitate card authentication.

The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=338ce8ba05b33310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related fact sheet is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=19a9e8ba05b33310VgnVCM100000082ca60aRCRD&vgnextchannel=acffaca797e63110VgnVCM1000004718190aRCRD.

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November 4, 2011

pearllawgroup — Fri, 04 Nov 2011 19:42:43 +0000

Pearl Global Immigration NewsFlash

November 4, 2011

BRAZIL

Overseas Travel Restricted for Foreigners Not Yet Registered in Rio de Janeiro

Unlike in São Paulo, where the Federal Police recently began permitting foreign nationals to travel overseas without completing registration, those foreigners working in Rio de Janeiro are cautioned not to travel until they have fully registered and obtained the Temporary RNE (Protocolo).

Foreigners in São Paulo can travel abroad and re-enter Brazil, without being subject to fines and additional scrutiny, simply by showing proof of their upcoming appointment for RNE registration. While it may be difficult to schedule registration appointments with the Federal Police, those in Rio de Janeiro should continue to hold off on travelling until they secure an appointment and complete registration.

ITALY

Italy Requiring Fingerprints for Short-Term Visas

As of October 11, 2011, the Italian Consulates in Algeria, Egypt, Libya, Mauritania, Morocco and Tunisia are now requiring fingerprints for individuals applying for short-term Schengen visas (maximum of 90 days for business and tourism). This is intended to improve border control and to expedite the issuance of future visas to those already registered in the Schengen Visa Information System (VIS).

It is expected that this requirement will be enforced in other Italian Consulates in the Schengen Area within the next two years. Other European Union (EU) consulates are following suit as part of a larger EU effort to include fingerprints of visa applicants from North African countries in a database that connects all 25 countries in the Schengen “border-free” zone.

*Special thanks to our ABIL colleagues for this update.

MALAYSIA

Changes to Employment Pass Categories

Effective November 1, 2011, the Malaysian Immigration Department Headquarters announced that the Temporary Employment Visit Pass category will be eliminated. Employment Passes will now be divided into the following two categories:

Employment Pass 1 (previously called Employment Pass): for 24-60 months

Employment Pass 2 (previously called Temporary Employment Visit Pass): for 3-23 months

Employment passes will no longer be issued for work assignments of less than three months and the requirements and fees should be confirmed before filing.

In addition, all applications for Employment Passes must list the job position applied for in accordance with the Malaysian Standard Classification of Occupations (MASCO). For extension cases, any foreign worker’s job title that does not match with one listed on MASCO, must be changed and filed

UNITED KINGDOM

Jobs Removed from the Shortage Occupation List

The UKBA (UK Border Agency) announced in October that specialist jobs that are no longer required in the UK will be removed from the shortage occupation list, starting on November 14, 2011. The UK government accepted recommendations from the Migration Advisory Committee (MAC) under Tier 2 (General) of the Points Based System to drop the number of jobs available to foreign workers by 40,000. Some of the occupations removed from the list include:

secondary education biology teachers;

speech and language therapists;

pharmacists;

orthoptists;

veterinary surgeons; and

rank and file orchestral musicians.

The UKBA, like many other governments in this economy, are aiming to protect their labor market and free up jobs for local workers. The Tier 2 (General) category is still available to those applicants who qualify under the new shortage occupation list or who pass a resident labor market test. The MAC is currently reviewing the policies for Tier 2 work permit categories, including the annual cap figures for 2012-2013, reconsideration of minimum skill and salary levels, and challenges to the labor market test requirements. With the Olympics being held in London next year, the UK government is facing additional pressures to make the right decisions.

Volume 127 (October 21, 2011)

pearllawgroup — Fri, 21 Oct 2011 19:12:02 +0000

Pearl Immigration NewsFlash

General Release Vol. 127 (October 21, 2011)

Thanks for trusting Pearl Law Group and the Alliance of Business Immigration Lawyers (ABIL) for your business immigration updates. As always, we welcome your comments and questions.

Headlines (Details below)

USCIS Changes “Notice of Action” Receipts and Approvals Policy — USCIS has been sending original Form I-797, Notice of Action, receipt and approval notices directly to petitioners and applicants, and then on October 20th announced that they will revert to the old system of sending them to the attorney of record.

November EB-2 Cut-off Dates for China and India Most Favorable since 2007 — The November EB-2 cut-off date for China and India is November 1, 2007.

Federal Court Halts Parts of Alabama Immigration Law — The U.S. Court of Appeals for the 11th Circuit issued an injunction pending appeal blocking certain provisions of Alabama’s new immigration law.

California “Dream Act” Becomes Law — California Governor Jerry Brown signed into law the second portion of the California Dream Act, which allows undocumented students to qualify for state-funded scholarships and financial aid for state universities after legal resident and U.S. citizen students have applied.

Details…

USCIS Changes I-797 “Notice of Action” Receipts and Approvals Policy

On September 30, 2011, U.S. Citizenship and Immigration Services (USCIS) posted a notice on its website stating that on September 12, 2011, they began sending original Form I-797, Notice of Action, receipt and approval notices directly to petitioners and applicants.

On October 20, 2011, they reversed themselves and said they would go back to sending the I-797s to the attorney of record or accredited representative named on Form G-28, Notice of Entry of Appearance as Attorney or Accredited Representative.

USCIS said it implemented the initial notification change to ensure that documents are mailed directly to the address specified by the petitioner or applicant. USCIS said it “apologizes for any inconvenience caused by not conducting commensurate outreach and providing time for affected stakeholders to adjust their practices.” But at a September stakeholder’s meeting the outcry about unintended negative consequences was so great that USCIS reversed itself. They estimate that it will take approximately six weeks to reprogram their system so that notices are sent to the address on the G-28.

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November EB-2 Cut-off Dates for China and India Most Favorable Since 2007

From the Department of State’s Visa Bulletin for November 2011:

The November EB-2 cut-off date for China and India is November 1, 2007.

The November Visa Bulletin is available at http://travel.state.gov/visa/bulletin/bulletin_5572.html.

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Federal Court Halts Parts of Alabama Immigration Law

On October 14, 2011, the U.S. Court of Appeals for the 11th Circuit issued an injunction (pending appeal) blocking certain provisions of Alabama’s new immigration law, HB 56. The provisions blocked included requiring the immigration status of public schools students be checked and making failure to “complete or carry an alien registration card” a misdemeanor for immigrants. The court allowed Alabama to enforce other controversial provisions, such as requiring that when police stop someone, they attempt to determine the immigration status of anyone they think might be unauthorized; barring state courts from enforcing contracts with undocumented individuals if the hiring party knew that the person was in the U.S. unlawfully; and making it a felony for undocumented people to enter into business transactions in Alabama, including applying for a driver’s license or business license.

The Department of Justice (DOJ) has filed an appeal with the 11th Circuit because of potential negative consequences of the new state law both domestically and internationally, including conflicts with federal responsibilities, discrimination against those legally in the U.S., driving undocumented persons underground or to other states, and affecting diplomatic relations. The American Civil Liberties Union and other advocacy groups have filed a separate motion against Alabama’s new law.

The law is already having an impact in Alabama: a quarter of commercial building workers have reportedly left the state, several thousand students have stopped going to school and church attendance has dropped. The Alabama-based Southern Poverty Law Center set up a hotline and has received about 2,000 calls so far from people with problems, such as being afraid to drive their sick family members to the doctor, being unable to set up water service because water companies were requiring them to prove their legal status, or whose children were being bullied at school. DOJ has provided contact information for complaints about the Alabama law: Telephone: 855-353-1010; Email: Hb56@usdoj.gov.

Tomato farmer Jamie Boatwright reported that he has a large crop of tomatoes ripe and ready for picking, but most of his workers have left Alabama. Similarly, the owners of Smith & Smith Farms were struggling with only three trucks of workers for harvesting rather than twelve. Both farms reported that U.S. workers were either not interested or started working but then quit after a few hours. Meanwhile, contractors are taking longer to rebuild after the spring tornadoes that devastated the Tuscaloosa area. “We’re seeing smaller crews and seeing work take longer to accomplish,” said Jimmy Latham, president of Alabama Associated General Contractors and a Tuscaloosa contractor.

Alabama state Senator Scott Beason, who sponsored the legislation, said he is receiving similar complaints from local businesses experiencing difficulties in finding workers and keeping their businesses going. He asserted that there are sufficient numbers of Americans willing to do the jobs abandoned by undocumented workers and that the adjustment to the new law will take time. Mr. Boatwright begs to differ, noting that he hasn’t been able to attract or retain American workers to his tomato farm and that if he were to raise his wages in an attempt to do so, he would also have to hike the price of his tomatoes and would lose business to neighboring states.

The text of the Alabama law is available at http://alisondb.legislature.state.al.us/acas/searchableinstruments/2011rs/bills/hb56.htm. The latest opinion from the 11th Circuit is at http://www.ca11.uscourts.gov/unpub/ops/201114532ord.pdf. The most recent previous court action on the law, enjoining certain provisions but upholding others, is available at http://irli.org/system/files/US%20v%20Alabama%2011-2746%20PInj%20Order_9-28-11.pdf.

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California “Dream Act” Becomes Law

California Governor Jerry Brown has signed into law AB 131, the second portion of the California “Dream Act,” which allows undocumented students to qualify for state-funded scholarships and financial aid for state universities after legal resident and U.S. citizen students have applied. Gov. Brown said it would enable top students to have “a chance to improve their lives and the lives of all of us.” In July, he signed the first portion (AB 130), which allows such students to apply for private scholarships and loans. Currently, undocumented California high school graduates can apply for in-state tuition rates, as can those in 12 other states.

Assemblyman Gil Cedillo (D-Los Angeles) said the legislation will increase California’s competitiveness in the global economy and that California “is prepared to lead the country with a positive and productive vision for how we approach challenging issues related to immigration.” Los Angeles Mayor Antonio Villaraigosa said the new law “invests in the dreams of talented undocumented students and in the economic future of our state.”

Not everyone in California is on board with the new law, however. Assemblyman Tim Donnelly (R-Hesperia) wants to put an initiative on the ballot to overturn it, calling the new law “absolutely, fundamentally wrong and unfair and…an insult to people who have worked and played by the rules, including those who have come to this country legally.”

The text of AB 131 (as enrolled) is available at http://e-lobbyist.com/gaits/text/351864.

Volume 126 (September 28, 2011)

pearllawgroup — Wed, 28 Sep 2011 22:42:06 +0000

PLG Immigration NewsFlash

General Release Vol. 126 (September 28, 2011)

Thanks for entrusting Pearl Law Group and the Alliance of Business Immigration Lawyers (ABIL) for your business immigration updates. As always, we welcome your comments and questions.

Headlines (Details below)

U.S. Consulate in Mumbai Resumes H and L Visa Processing — The resumption in processing follows a hiatus since March due to infrastructure problems.

Global Entry “Trusted Traveler” Program — CBP and TSA announce program for expedited screening through U.S. and Canada security checkpoints.

Green Card Lottery — Open from 12:00 p.m. (EDT) Tuesday, October 4, 2011, to 12:00 p.m. (EDT) Saturday, November 5, 2011. ONLY electronic entries will be accepted. 50,000 immigrant (“green card”) Diversity Visas will be available for fiscal year 2013, which begins October 1, 2012. Entries must be received between 12:00 p.m. EDT October 4, 2011, and 12:00 p.m. EDT November 5, 2011.

Details…

U.S. Consulate in Mumbai Resumes H and L Visa Processing

The U.S. Consulate General in Mumbai recently announced the resumption of interviews for H and L visas, after a stoppage that began in March 2011 to fix aging infrastructure. Until further notice, all interviews will be conducted at the Lincoln House Consulate building, located at 78, Bhulabhai Desai Road. Visa appointments may be made online via VFS at http://www.vfs-usa.co.in/ApplnForms/SchduleMenu.aspx. The announcement is available at http://mumbai.usconsulate.gov/interviews-and-appointments.html.

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Global Entry “Trusted Traveler” Program

On July 14, 2013, U.S. Customs and Border Protection (CBP) announced that it is working with the Transportation Security Administration (TSA) on a new Department of Homeland Security initiative that qualifies some passengers for expedited screening through U.S. airport security checkpoints on both international and domestic flights. This pilot program will be available to U.S. citizens who are members of CBP’s Global Entry, NEXUS and SENTRI Trusted Traveler programs. The pilot program will provide expedited screening through TSA checkpoints via dedicated screening lanes.

CBP also announced that there are Global Entry kiosks at CBP preclearance in Vancouver International Airport and Ottawa’s MacDonald-Cartier Airport; Toronto’s Lester B. Pearson International Airport and Montreal’s Trudeau International Airport will be opening them soon.

For more information about the Trusted Traveler program, see http://www.cbp.gov/xp/cgov/travel/trusted_traveler/. For more information about Global Entry, see http://www.globalentry.gov/. For more information and the latest updates, please visit http://www.tsa.gov/ or contact TSA at (866) 289-9673.

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Green Card Lottery

2013 Annual Diversity Visa (Green Card) Lottery

Who is Eligible to Apply?

Except for people from countries with “high admission” rates to the U.S., any foreign national with a high school education or equivalency (or two years of experience gained in the past five years in an occupation that requires at least two years’ experience or training) is eligible to apply.

Nationals from the Following Countries are NOT Eligible:

Bangladesh

Brazil

Canada

China (Mainland-born only; persons born in Hong Kong SAR, Macau SAR and Taiwan are eligible)

Colombia

Dominican Republic

Ecuador

El Salvador

Guatemala

Haiti

India

Jamaica

Mexico

Pakistan

Peru

Philippines

South Korea

United Kingdom (except Northern Ireland) and its dependent territories

Vietnam

Because the purpose of the lottery program is to encourage “diversity” in U.S. immigration, natives of these countries are excluded.

Selection and Notification

There are two phases of the diversity visa lottery selection process. First, a computer will randomly select individuals from among all qualified entries, regardless of the time of receipt during the entry period. In the second phase, applicants will need to go to the E-DV website Entrant Status Check and, using the confirmation number saved from their DV-2013 online entry registration, find out if their entry has been selected in the DV program. Entrant Status Check will be available at the E-DV website starting May 1, 2012. Selectees will be directed to a confirmation page that will provide further instructions, including information on fees connected with immigration to the United States. Entrant Status Check will be the ONLY means by which selectees will be notified of their selection for DV-2013. The Department of State (DOS) will not be mailing out notification letters. Those selected in the random drawing are NOT notified of their selection by email. Applicants NOT selected will be notified of their non-selection through Entrant Status Check. U.S. embassies and consulates will not provide a list of selectees.

Being selected in this first phase of the lottery does not guarantee that an applicant will be issued an immigrant visa. As always, DOS will select more entries than the number of immigrant visas available, to account for people who may not ultimately qualify for visas, who decide not to apply or who gain permanent residence through other means. Therefore, you and your eligible derivative family members must be prepared to act immediately if you receive notification that your entry has been selected: DV-2013 visas will be issued between October 1, 2012, and September 30, 2013. Under no circumstances can DV-2013 visas be issued or adjustments approved after this date. The DV-2013 program will end when all 50,000 immigrant visas have been issued.

Government Information Sources

For official instructions and answers to Frequently Asked Questions, please refer to http://travel.state.gov/pdf/DV_2013_instructions.pdf.

How to Apply

DOS will again accept only Electronic Diversity Visa Entry forms (“E-DV Entry Forms”) for this year’s program. DOS will not accept paper entries. E-DV Entry Forms must be submitted at http://www.dvlottery.state.gov during the registration period, which begins at noon Eastern Daylight Time on Tuesday, October 4, 2011, and ends at noon Eastern Daylight Time on Saturday, November 5, 2011. Follow the instructions on the website carefully; failure to complete the form in its entirety will disqualify the entry.

Only one entry may be sent per applicant, whether filed by the individual or by someone else on his or her behalf. Multiple or duplicate entries will automatically disqualify the applicant.

DOS will send DV lottery applicants an electronic confirmation notice upon receipt of a completed E-DV Entry Form.

Each entry must include the following:

Applicant’s Full Name:

Last Name, First Name, Middle Name

Example: Wong, Heidi, Gretchen

NOTE: Enter your name exactly as it is listed in your passport.

Applicant’s Date of Birth:

Day, Month, Year

Example: 15 November 1962

Applicant’s Gender:

Male or Female

Applicant’s City or Town of Birth:

Example: Munich

Applicant’s Country of Birth:

Example: Germany

NOTE: The name of the country should be that which is currently in use (for example, Slovenia, rather than Yugoslavia; Kazakhstan rather than Soviet Union).

Country of Eligibility or Chargeability for the Diversity Visa Program:

NOTE: This will usually be the same as your country of birth, and is not determined by the country in which you live. If you were born in a country that is not eligible for the 2013 Diversity Visa Program, you MAY under certain circumstances nevertheless be eligible for the program through the native country of your spouse or parents. Please refer to FAQ #1 of the State Department’s instructions, linked above.

Applicant’s Photograph:

Entries must include separate, recent photographs, meeting the specifications below, of the applicant and his or her spouse, as well as each child under the age of 21, including all natural children and all legally adopted children and stepchildren, excepting only those children who are already U.S. citizens or Lawful Permanent Residents of the U.S. Entries must include photos of each child, even if the child no longer resides with the applicant or is not intended to immigrate under the DV program. DOS will not accept group photos.

Each applicant, his or her spouse and each child will need a computer file containing his or her digital photo, to be submitted online with the E-DV Entry Form. The photo file may be produced either by taking a new digital photograph or by digitally scanning an existing photograph. It would be prudent to take a new digital photograph to ensure that the photograph is “recent.”

All digital images must conform to detailed technical specifications. If the submitted digital images do not conform to these specifications, the system will automatically reject the E-DV Entry Form and notify the sender.

The image must be in JPEG (Joint Photographic Experts Group) format.

The image must be 600 pixels wide by 600 pixels high and must be in 24-bit color depth. Images that are 2-bit and 8-bit color depth or grayscale will NOT be accepted.

The image cannot exceed 240 kilobytes (240 KB) in size.

Scanned photographic prints must be 2 inches by 2 inches (50mm x 50mm) square. They must be scanned at a resolution of at least 300 dots per inch (dpi) and must meet all of the above requirements.

If the computer rejects a submission because of failure to comply with these specifications, the applicant will need to submit a new entry with conforming photos.

Images must also meet the following specifications:

Applicant, spouse or child must directly face the camera. His or her head must not be tilted up, down or to the side, and should cover between 50 and 69 percent of the height of the photo.

The photo must be taken with the applicant, spouse or child in front of a neutral, light-colored background. Avoid dark or patterned backgrounds.

The person’s face must be in focus. The person being photographed may not wear sunglasses or items that detract from or cover the face.

Photos of applicants wearing head coverings or hats are acceptable only where dictated by the applicant’s religious beliefs; such head coverings must not obscure any part of the person’s face. Tribal or other headgear not specifically dictated by religious beliefs or military, airline or other personnel/uniform style hats will not be accepted.

If photos of the applicant or any family member do not conform to these specifications, the application will be rejected. Pay careful attention to each photo included in your application. DOS will not notify applicants of rejection for failure to conform to this second set of specifications.

The complete list of technical specifications may be found at http://travel.state.gov/pdf/DV_2013_instructions.pdf.

Applicant’s Mailing Address:

Include the street address, city/town, district/country/province/state, postal code/zip code and country.

Example: 33 Ridge Road, Apt. 3

Kalamazoo, MI 55555

USA

The Country Where the Applicant Lives Today

Applicant’s Phone Number:

This is optional.

Applicant’s E-mail Address:

This is optional. If someone else submits an application electronically on the applicant’s behalf, electronic confirmation of filing will be sent to the email account from which the application was submitted. It is important to remember that applicants who are ultimately selected in the lottery will be notified only via physical mail.

Highest Level of Education:

The applicant should choose from among the 10 options given: 1) Primary school only; 2) High school, no degree; 3) High school degree; 4) Vocational school; 5) Some university courses; 6) University degree; 7) Some graduate level courses; Master’s degree; 9) Some doctorate level courses; and 10) Doctorate degree

Applicant’s Marriage Status:

Unmarried, Married, Divorced, Widowed, Legally Separated

Number of Applicant’s Children that are Unmarried and Under 21 Years of Age:

Information must be provided for ALL natural children, legally adopted children and stepchildren who are unmarried and under the age of 21, regardless of the applicant’s marital status and regardless of whether the children will immigrate with the applicant. The only exceptions are children who are either U.S. Lawful Permanent Residents or U.S. citizens.

Information regarding Applicant’s Spouse:

Name, date of birth, gender, city or town of birth, country of birth and photograph.

NOTE: Applicants must list their spouse, even if currently separated. Failure to do so will disqualify the principal applicant and ultimately result in refusal of all visas in the case.

Information on the Applicant’s Children:

Name, date of birth, gender, city or town of birth, country of birth and photograph of each child.

Applicants must include all children, including adopted children and stepchildren. Failure to disclose all children (under the age of 21 and unmarried) of the applicant and the applicant’s spouse will disqualify the entry. Only children who are already U.S. citizens or Lawful Permanent Residents may be excluded. Married children or children who are already 21 years of age will not qualify to immigrate with the applicant.

How and Where to Send the Entry

Entry must be submitted by using online filing of the Electronic Diversity Visa Entry Form through the http://www.dvlottery.state.gov website.

DOS’ electronic submission system may have problems and delays during peak periods of submission. Since entries will be selected randomly without regard to the date they are received, applicants may wish to time their submissions accordingly.

We encourage all of our eligible foreign national clients to apply and to forward this email to any friends and family who may be eligible to apply for the lottery. We also encourage all employers that we represent to forward this message to all of your foreign-born employees, even if they have already applied for or obtained a green card. Winning the lottery can provide a shortcut for a person who already has an application pending, and many people who already have green cards will have friends or family members who may be interested in the lottery.

There is no need to use a lawyer to prepare a lottery application; DOS’ website provides comprehensive instructions. We are, of course, available to answer any questions that you or your employees may have about the lottery, and to assist anyone who wins the lottery in completing the application process.

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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 PERM processing times:

http://icert.doleta.gov/#fragment-2

Department of State Visa Bulletin:

http://travel.state.gov/visa/bulletin/bulletin_1360.html

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Disclaimer/Reminder

The Pearl Law Group Immigration NewsFlash provides periodic alerts about noteworthy developments in business and corporate immigration and related topics. It is provided as information only and is not a substitute for legal counsel. If you have questions about the NewsFlash, please contact your PLG attorney or write askplg@immigrationlaw.com.

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August 31, 2011

analisa — Wed, 31 Aug 2011 00:02:20 +0000

Pearl Global Immigration NewsFlash

August 31, 2011

Australia

The Australian Department of Immigration & Citizenship (DIAC) has announced that starting November 1st, 2011, they will offer accredited status to Standard Business Sponsors. Accreditation will offer priority 457 Visa processing (both nomination and visa applications) for qualified employers. The DIAC has not yet announced how quickly the 457 applications will be processed under this program.

Accreditation will be available by modifying an existing sponsorship or as part of a new sponsorship application. If accreditation is approved, the sponsorship agreement will be valid for six years (increased from the existing approval period of 3 years).

DIAC has announced that in order to qualify for Accredited Status, a sponsor must satisfy the following requirements:

be a government agency, a publicly-listed company, or a private company, with a minimum of A$4 million turnover per year for the last 3 years

have been an active Subclass 457 Visa sponsor for the past three years (with a break of no more than 6 months, not due to any sanction)

have no adverse information known about them based monitoring by Australian immigration and workplace authorities, including formal warnings and sanctions

have had at least at least 30 Subclass 457 Visa holders granted in the previous 12 months

have lodged a high level of decision-ready applications over the previous 2 years

have a non-approval rate of less than 3% for the previous 3 years

have Australian workers comprising at least 75% of their workforce in Australia and a commitment to maintain this level

have a valid Collective or Enterprise Agreement which will cover all sponsored Subclass 457 Visa holders earning less than A$180,000 per year.

An Accredited Sponsor will be required to maintain the above requirements for the duration of the sponsorship. Please note that although very few companies will actually be able to meet the last requirement and take advantage of this scheme, if you believe your company may qualify for this program, please contact Pearl Law Group for an assessment.

India

All foreign nationals holding Employment (E) or Study (S) visas must now register with the Bangalore Foreigner’s Regional Registration Office (FRRO) regardless of the length of their intended stay. Until now, only those foreigners working and studying in Bangalore for 180 days or more were required to register within 14 days of arrival in India.

Dependent family members (X Visa holders) are still exempt from this requirement if they will be in India for less than the 180 days. The exception will also apply to those Employment Visa holders who are already in Bangalore and do not plan to stay for more than 180 days or do not have a mandatory registration requirement stamped in their visa.

E and X visa holders will also be required to submit additional documentation when registering, including a copy of their PAN Tax ID card or a receipt showing that they have applied. Spouses of E visa holders will now need to present their original marriage certificate or an authenticated copy of the certificate, along with a letter stating that they will not engage in any work while in India. Dependent children are not yet required to submit birth certificates, but this may be forthcoming.

Companies should also be prepared for new document requirements when filing renewal applications with the Bangalore FRRO.

Singapore

The Singapore government has tightened entry requirements for foreign workers, especially those professionals in the middle income groups. These efforts are aimed to protect the local Singaporean workforce. Starting January 1, 2012, foreign nationals applying for Employment passes in the most common Q1 and P2 categories will face increased minimum salary and education requirements.

Q1 Employment Pass holders will have to earn at least S$3,000 per month, up from the current minimum of S$2,800, as well as meet increased work and educational requirements. P2 Pass holders will need to make at least S$4,500, an increase from the current minimum of S$4,000. The Ministry of Manpower (MOM) will exercise discretion over those foreign nationals who do not meet the new minimum requirements but have specialized talents, extensive work experience, impressive educational achievements and a strong career history.

So far, no changes have been made to the P1, Personalized Employment Pass and the S Pass categories. P1 and PEP holders must have a minimum salary of at least S$8,000 per month and the S Pass holders require at least S$2,000 per month.

Companies should contact Pearl Law Group for advice on how these changes will affect those foreign workers currently holding Q1 and P2 passes that will expire before, during and after January 1, 2012.

United Kingdom

As of August 9, 2011, the UK Border Agency (UKBA) started accepting applications for the new Tier 1 (Exceptional Talent) Category. Tier 1 (Exceptional Talent) is for those foreign nationals who are “internationally recognized as world leaders or potential world-leading talents in the fields of science and the arts.” These foreign nationals will not require employer sponsorship but will need a Unique Reference Number (URN) from the UKBA and a nomination from a Designated Competent Body (DCB) before applying for the entry clearance visa at the UK consular post in their country of residence. The Designated Competent Bodies and their allocations are as follows:

The Royal Society: 300 nominations;

The Arts Council England: 300 nominations;

The Royal Academy of Engineering: 200 nominations; and

The British Academy: 200 nominations

There will be a cap on the number of visas available in the Tier 1 (Exceptional Talent) category, with the UKBA allotting a total of 1,000 spots between August 9, 2011 and April 5, 2012. The first 500 are available for use between August 9 and November 30, 2011, and the second 500 between December 1, 2011 and April 5, 2012. The UK government will reassess the need for additional visas in March 2012.

Tier 1 (Exceptional Talent) visa holders will initially be permitted to stay in the UK for up to three years and four months. They will be able apply for an extension, allowing them to stay for two additional years. If these individuals complete five years of residence in the UK under this status, they will qualify for Indefinite Leave to Remain (permanent residence).

Volume 125 (August 2, 2011)

analisa — Tue, 02 Aug 2011 22:56:24 +0000

PLG Immigration NewsFlash

General Release Vol. 125 (August 2, 2011)

Thanks for entrusting Pearl Law Group and the Alliance of Business Immigration Lawyers (ABIL) for your business immigration updates. As always, we welcome your comments and questions.

Headlines (Details below)

EAD Processing Delays Cause Hardship — The Department of Homeland Security’s Ombudsman stated that individuals and employers experience adverse consequences when EAD processing is delayed and made recommendations to alleviate the situation.

DOS Announces New Requirement for Passport Applications — An applicant’s parent(s)’ full name(s) must be listed on all certified birth certificates for them to be considered primary evidence of U.S. citizenship, regardless of the applicant’s age.

Company Held Liable for Back Wages of H-1B Employee Who Never Worked — An employer’s failure to prove every element of an H-1B worker’s bona fide termination left them liable for the entire period of authorized employment.

USCIS Releases EB-5 Investor Statistics — USCIS released data on EB-5 filings and regional centers for FY 2010 and the first two quarters of FY 2011.

ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals — Several visa options exist, each with its own advantages, disadvantages and limits.

Details…

EAD Processing Delays Cause Hardship, Ombudsman Says

On July 11, 2011, the Department of Homeland Security’s Ombudsman noted that in some cases the U.S. Citizenship and Immigration Services (USCIS) fails to meet its regulatory requirement to process applications for employment authorization in 90 days, and USCIS generally does not issue interim employment authorization documents (EADs). These processing delays have adverse consequences for employers and foreign national employees—applicants experience financial hardship from job interruption and termination, families face suspension of health benefits and individuals have difficulty renewing driver’s licenses, while business operations stall from loss of employee services. The lack of immediate resolution through USCIS’ designated venues exacerbates the situation.

The Ombudsman recommended that USCIS take the following actions to improve EAD processing:

establish methods at local offices to facilitate immediate resolution;

establish a uniform processing time goal of 45 days for adjudication and 60 days for EAD issuance;

improve monitoring and ensure real-time visibility through an automated system for tracking processing times;

follow established internal procedures for issuing interim EADs in cases where background checks are pending; and

issue replacement EADs with validity dates beginning on the date the old EAD expires.

USCIS currently directs applicants with EAD delays to contact the National Customer Service Center (NCSC) or the local district office; however, neither venue has the ability to provide direct assistance. The Ombudsman noted that USCIS is reviewing the procedures and may provide field offices with updated guidance on how to assist individuals with EAD applications pending beyond 90 days. Currently, USCIS representatives or officers assist individuals with delayed I-765s by submitting service requests or sending e-mails to the National Benefits Center or service centers.

While both service requests and emails alert the applicable office of a delay, I-765 adjudication and EAD delivery may take 10 or more days. According to the Ombudsman, even though customers receive responses to service requests in five days for expedite requests and 15 days for all other requests, these responses are often “generic and unhelpful.” The responses are often that an applicant’s case is “under review” but do not provide a timeline for issuance of the EAD. Other responses merely state that a decision will be issued in 30 or 60 days, when the application has already been pending more than 90 days. The Ombudsman said “such responses fail to address the problem because they do not assist the customer in rapidly obtaining an interim or final EAD. The failure to communicate useful information to customers often results in repeated telephone and in-person inquiries, causing inefficiencies for USCIS.”

The Ombudsman also said USCIS’ website lists alternative contact information, such as email addresses, for service centers and the USCIS Headquarters Office of Service Center Operations. However, before people email those addresses, USCIS advises them to wait 30 days for a response from NCSC and 21 days for a response from the service centers, “when even one day of delay may lead to financial loss for EAD applicants and business disruption for employers.”

The Ombudsman termed the Vermont Service Center’s five-day processing goal for background checks conducted in connection with adjudication of an I-765 a “best practice.” Adjudicators email cases to the Background Check Unit (BCU), identifying the form type and marking it as an expedite request in the subject line. BCU monitors the inbox to ensure that cases are promptly referred to adjudicators and resolved within the specified timeline. This process allows USCIS to resolve minor concerns immediately, while carefully reviewing cases that involve national security, egregious public safety issues, criminal convictions or immigration fraud.

The Ombudsman’s report is available at http://www.dhs.gov/xlibrary/assets/cisomb-employment-authorization-documents-07182011.pdf.

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DOS Announces New Requirement for Passport Applications

The Department of State (DOS) announced that an applicant’s parent(s)’ full name(s) must be listed on all certified birth certificates for them to be considered primary evidence of U.S. citizenship, regardless of the applicant’s age. Certified birth certificates without this information are not acceptable as evidence of citizenship. Applications submitted or accepted before April 1, 2011, are not affected.

The announcement is available at http://travel.state.gov/passport/passport_5401.html. Links to vital records offices state-by-state are available at http://www.cdc.gov/nchs/w2w.htm.

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Company Held Liable for Back Wages of H-1B Employee Who Never Worked

Ganze & Company, an accounting firm in Napa Valley, California, filed a labor condition application (LCA) to hire Kevin Limanseto as an H-1B employee but subsequently decided not to employ him. However, Ganze never informed the government of the change and Mr. Limanseto complained to the Department of Labor that he had never been paid. Administrative Law Judge William Dorsey noted:

Informing the immigration authorities that the employment has been terminated is the quid pro quo to be relieved of one of the duties the employer promises to fulfill when it signs the labor condition application: the duty to pay the required wage rate. Until it does, the employer remains on the hook for the H-1B worker’s wages and benefits. For the price of a postage stamp, the Employer often can absolve itself of further liability.

In this case, it was more than two years before Ganze reported that they had not hired Mr. Limanseto. Also, Ganze did not pay for Mr. Limanseto’s trip home, which is another element of a bona fide termination. Judge Dorsey noted the failure to prove every element of a bona fide termination leaves an employer who petitioned for an H-1B worker’s admission liable for the entire period of authorized employment; therefore, he found Ganze liable for wages for the entire period of the LCA, plus interest. The total amount for which Ganze is liable exceeds $156,000.

The decision, Matter of Limanseto, 2011-LCA-00005, is available at http://www.oalj.dol.gov/Decisions/ALJ/LCA/2011/LIMANSETO_KEVIN_v_GANZE_and_COMPANY_2011LCA00005_(JUN_30_2011)_124211_CADEC_SD.PDF.

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USCIS Releases EB-5 Investor Statistics

USCIS released data on EB-5 filings and regional centers (RCs) for fiscal year (FY) 2010 and the first two quarters of FY 2011. As of June 30, 2011, there are 147 approved regional centers (RCs) operating in 39 states, including the District of Columbia and Guam. Ninety percent or more of the individual Immigrant Petitions by Alien Entrepreneur (Form I-526) filed each year are from investors in RC-affiliated commercial enterprises. There are 83 initial RC proposals pending at USCIS, and nine RC proposals seeking to amend approved RCs.

As shown below, USCIS figures continue to show a steep increase in the number of RC filings and EB-5 visa approvals.

First Half of FY 2011 All of FY 2010

Initial RC Proposal Filings

Received 146 110

Approved 25 36

Denied 11 30

Approval Rate 69.4% 54.5%

Immigrant Petition by Alien

Entrepreneur (Form I-526)

Received 1,601 1,955

Approved 407 1,369

Denied 96 165

Approval Rate 80.9% 89.2%

Petition by Entrepreneur to

Remove Conditions (Form I-829)

Received 1,150 768

Approved 166 274

Denied 26 56

Approval Rate 86.5% 83.0%

USCIS also reported that although their target time for processing I-526 petitions is five months, actual processing times are closer to 5½ months and there are those in the field who claim it is actually more like seven months. USCIS’ target processing time for both initial and amended RC proposals is four months; they report that their current processing times for initial RC filings is 4½ months, but only one month for amended filings. They report that I-829 filings are taking only one month to process, far ahead of the six-month target processing. USCIS said it strives to finalize EB-5 cases within 30 days of receiving responses to requests for evidence.

USCIS estimates that they issued 2,129 EB-5 visas in the first and second quarters of 2011, compared with 1,885 in all of FY 2010. Their previous record was 4,218 EB-5 visas issued in FY 2009.

The next EB-5 “stakeholder engagement” meeting is scheduled for September 15, 2011, at 1:00 p.m. EDT. This engagement will be an opportunity for USCIS to share information on the EB-5 program and address stakeholders’ related topics of interest. USCIS is specifically interested in receiving topics related to the Form I-912A, Supplement to Form I-924. The deadline to submit agenda items is August 15, 2011. An open forum for questions and answers (non-case-specific) will be provided at the engagement. See http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=13c5f5873e661310VgnVCM100000082ca60aRCRD&vgnextchannel=e0b081c52aa38210VgnVCM100000082ca60aRCRD for details on registering to attend the engagement either in person or by telephone, and instructions on submitting agenda items.

USCIS’ presentation from the most recent engagement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=948723cbea6bf210VgnVCM100000082ca60aRCRD&vgnextchannel=61ca6ec2ac3ee210VgnVCM100000082ca60aRCRD.

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

Many foreign entrepreneurs want to start businesses or invest in the United States. Other wealthy individuals want green cards to live in the U.S., but may be hesitant because of real or perceived immigration obstacles. Real estate developers and companies seeking capital for development projects are increasingly looking for EB-5 capital from foreign investors. Several visa options exist, but each has advantages, disadvantages and limits.

A three-part webinar series, presented by the Alliance of Business Immigration Lawyers (ABIL) and co-sponsored by Invest In the USA, the association of EB-5 regional centers, helps guide individual investors and others, as well as U.S. companies that want to attract foreign investors and wealthy individuals. The intended audience includes individual investors, potential and actual EB-5 regional centers, attorneys and advisors, real estate developers and companies seeking capital for development projects. Each 90-minute webinar in the series explains immigration options and offers practical real-world strategies.

Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held April 13 (a recording of the webinar is available for purchase).

Session 2: EB-5 regional center applications and project pre-approval petitions, was held July 6 (a recording of the webinar is available for purchase).

Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3:00 p.m. (EDT).

All participants will receive a file with the PowerPoint presentation, relevant articles and resources before each session, as well as a recording of the webinar. The cost is $89 for an individual session or $249 for all three sessions, live or recorded. For more information, see http://www.abil.com/news_detail.cfm?NEWS_ID=96. To register, go to: https://securec9.ezhostingserver.com/abil-com/abil_webinar_signup.cfm. For more information, contact Lauren Anderson at lauren@abil.com or visit http://abil.com.

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Government Agency Links

USCIS Service Center processing times online:

https://egov.uscis.gov/cris/processTimesDisplay.do

Department of Labor PERM processing times:

http://icert.doleta.gov/#fragment-2

Department of State Visa Bulletin:

http://travel.state.gov/visa/bulletin/bulletin_1360.html

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