• Australia — Caution should be exercised when dismissing 457 visa holders; tax benefits will soon be lost for expatriates; and reforms are coming in the employer-nominated permanent entry programs.
• Canada — Online and Accelerated Labor Market Opinion (LMO) Program announced
• France — More on new restrictions; France implements the EU Blue Card
• Italy — Italy implements the Integration Agreement.
• Netherlands — The Highly Educated Foreigners Scheme is being expanded to include more universities; family reunification rules are being tightened; and the EU Blue Card salary threshold has been announced for 2012.
• South Africa — Significant amendments to the Refugees Act and the Immigration Act, 2002, are expected; among other things, applying to change a visitor permit to a work or medical permit will be prohibited. Also, those wishing to work in South Africa for longer than three months must obtain an appropriate permit.

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April 2012

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

Headlines (Details below)

AUSTRALIA — Caution should be exercised when dismissing 457 visa holders; tax benefits will soon be lost for expatriates; and reforms are coming in the employer-nominated permanent entry programs.

CANADA — Online and Accelerated Labor Market Opinion (LMO) Program announced.

CHINA — A new entry and exit draft law has been introduced in China’s National People’s Congress; it is the first major overhaul of China’s immigration law since 1985.

FRANCE — More on new restrictions; France implements the EU Blue Card.

ITALY — Italy implements the Integration Agreement.

NETHERLANDS — The Highly Educated Foreigners Scheme is being expanded to include more universities; family reunification rules are being tightened; and the EU Blue Card salary threshold has been announced for 2012.

SOUTH AFRICA — Significant amendments to the Refugees Act and the Immigration Act, 2002, are expected; among other things, applying to change a visitor permit to a work or medical permit will be prohibited. Also, those wishing to work in South Africa for longer than three months must obtain an appropriate permit.

AUSTRALIA

Caution should be exercised when dismissing 457 visa holders; tax benefits will soon be lost for expatriates; and reforms are coming in the employer-nominated permanent entry programs.

Caution When Dismissing Sponsored Employees

Sponsors should be cautious when considering dismissal of 457 visa holders. As with their Australian counterparts, 457 visa holders have access to employment remedies under the Fair Work Act. Even where a sponsored employee’s employment is terminated under an employment agreement, the dismissal may still be held to be harsh, unjust, or unreasonable. Under Australian immigration law, when a sponsored employee’s employment is terminated, he or she has just 28 days to regularize visa status or leave Australia.

If sponsors fail to comply with relevant workplace law, Fair Work Australia may order one of two sanctions: compensation or reinstatement. This could also affect the sponsor’s continued ability to sponsor expatriates.

When determining whether a dismissal is harsh, unjust, or unreasonable, Fair Work Australia takes into account, among other factors, whether:

there was a valid reason for the dismissal;

the person was notified of the reason;

the person was given an opportunity to respond to any reason related to his or her capacity or conduct; and

the person received a warning about unsatisfactory performance before the dismissal.

Impending Changes to Living Away From Home Allowance Rules

Currently, employees living away from home to perform their employment duties in Australia may be eligible for tax-free benefits for reasonable housing and food costs under the Living Away From Home Allowance (LAFHA) rules. Changes have been proposed to start on July 1, 2011, to address the perceived abuse of these LAFHA tax concessions. As a result of the proposed changes, employers of foreign workers in Australia will need to consider their recruitment and retention strategies, current contracts of employment, and whether to facilitate transition of current sponsored temporary residence employees to permanent residence.

Reforms to Permanent Entry Employer-Nominated Program

The Australian government has announced reforms to the permanent entry employer-nominated visa program to be introduced on July 1, 2012.

Key reforms include:

removing the existing distinction between applications with respect to whether they are made by applicants who are in or out of Australia

replacing the current requirement of paying nominated permanent resident applicants at least the Minimum Salary Level (MSL) of $67,556 for IT-related occupations and $49,330 for other occupations with the need to pay the market salary

raising the upper age limit to less than 50 years; exceptions will apply for certain occupations and persons working in Australia for more than four years who were paid more than A$118,100 as of July 1, 2011

increasing the English-language IELTS test result to 6 for all applicants except those already in Australia and working for their nominating employer for the last two years; exceptions will apply for certain occupations, and nationals of five English-speaking countries (United Kingdom, United States, Canada, Ireland, and New Zealand)

introducing a single consolidated nominated occupation list (NOL) to replace the current sponsored employee 457 occupation list, the Employer Nomination Skilled Occupation List, and the State and Territory Sponsored Occupation List

integrating the permanent employer nominated visas with the skilled independent migrant selection model SkillSelect to be launched on July 1, 2012. Intending migrants who complete an Expression of Interest in migrating to Australia in SkillSelect can also indicate whether they are prepared to be sponsored for temporary residence or nominated for permanent residence by an employer.

CANADA

Service Canada announces changes to its LMO Program.

Effective April 1, 2012, Service Canada will allow LMO applications to be submitted online and most excitingly, offer an Accelerated LMO Process (ALMO). The online service will significantly cut down on paperwork and the ALMO will dramatically decrease the processing times for LMO applications. LMO applications have been taking up to 12 weeks recently, which has been a tremendous burden on companies hoping to bring foreign workers to Canada under the program or extending expiring work permits. Service Canada has promised a 10 day processing time for those companies who meet the following criteria:

previously had at least one LMO approved within the last two years;

a clean compliance history with the Temporary Foreign Worker (TFW) Program, and are not currently under audit; and

not been the subject of an investigation, an infraction, or a serious complaint, and do not have any unresolved violations under provincial laws. Finally, the employer must consent to participate in a subsequent audit process. (Until now, there has been a voluntary compliance program when submitting an LMO).

Companies should take advantage of these changes and check with their immigration provider on how to start submitting applications online and enjoying the accelerated service.

CHINA

A new entry and exit draft law has been introduced in China’s National People’s Congress; it is the first major overhaul of China’s immigration law since 1985.

At the end of 2011, a new draft law on entry and exit administration was introduced in China’s National People’s Congress for initial review. The draft law was subsequently published for public comments, and is under continuing review and discussion. Once passed, this law would be the first major overhaul of China’s immigration law since 1985.

The draft law authorizes the collection of biometric data, such as fingerprints, from individuals seeking entry and exit. It requires that foreigners who stay in China for more than 180 days apply for residence permits within 30 days of their date of entry at local police departments, where applicants’ fingerprints will be taken. The draft law also requires foreigners to carry valid identification and register their location of stay at their hotel, or with the local police department if the foreigner does not stay at a hotel.

The draft law signals the Chinese government’s intent to crack down on illegal employment and illegal presence in China. It defines illegal employment as providing services for compensation without a work permit and residence permit; providing services outside of the authorized scope; and foreign students working beyond the authorized scope or hour limit. Under the draft law, both employers and foreigners engaging in illegal employment will be subject to monetary penalties. Employees may also be subject to detention. The draft law also provides guidance regarding applications for permanent residence. Similar provisions are currently included in the regulations but not in the law.

FRANCE

More on new restrictions; France implements the EU Blue Card.

More on New Restrictions

The electoral campaign started this year and immigration is a hot issue in France, as it is in most other European countries. With its new anti-business immigration stance, the current government is trying to recapture the voters it may have antagonized by its pro-business conduct in preceding years. Business should be back to normal by the middle of this year, after the presidential and parliamentary elections.

A government circular of May 31, 2011, instructed labor authorities to apply greater scrutiny in adjudicating work permits and to interpret the regulations restrictively, with the aim of reducing the number of foreign nationals being admitted to France for professional purposes. Among other things, labor authorities must evaluate if a foreign worker is under- or overqualified for the employment offered. If he or she is underqualified, the application must be denied. If overqualified, the advertisement must be modified and published again.

Authorities also must verify that: (1) the compensation meets appropriate thresholds as determined by collective bargaining agreements, the market, and minimum salary laws; (2) the candidate has an adequate knowledge of French; and (3) the candidate is provided adequate housing.

The restrictive measures, which have increased processing times for work permits generally, do not apply to work permit categories that receive preferential processing, such as intra-company transfers, secondments, and seasonal workers.

France Implements EU Blue Card

On a more positive note, France has created a new immigration category by implementing the European Union (EU) Blue Card directive to attract skilled workers from third countries and facilitate the mobility and permanent residence of such workers within the EU.

The qualifying criteria are in accordance with the criteria stated in the EU directive:

an employment contract with a duration of one year or more;

a minimum annual salary threshold of 1.5 times the average salary of reference, which is determined by the Minister of Interior on an annual basis. According to the current reference salary (€34,296), this annual salary threshold is €51,444; and

A three-year higher education diploma or equivalent knowledge through five years of experience.

A qualifying third-country national will be issued a joint residence and work permit for the length of employment, with maximum validity of three years. This permit is renewable. An accompanying spouse will be issued a Private and Family Life category work permit, which may be renewed annually for as long as the main applicant has a valid Blue Card permit.

The Blue Card may also be issued to a third-country national who already holds a Blue Card issued by another member state and wants to accept employment in France after 18 months of residence under the initial Blue Card. The application is made within one month of arrival in France. The applicant need not present a long-stay French visa.

The Blue Card permit is issued without labor market testing. Its beneficiary and his or her spouse would qualify for the EU long-term resident permit after five years of residence under the Blue Card in the EU, of which only the last two years must be in France.

French authorities have up to 90 days to adjudicate the Blue Card application and up to six months to adjudicate the accompanying spouse’s residence permit.

The advantages of the Blue Card over other categories are:

Intra-company prior employment is not required.

Mobility within the EU is facilitated.

Acquisition of long-term resident status is facilitated.

The qualifying criteria are very precise (leaving less room for the discretion of the government).

ITALY

Italy implements the Integration Agreement.

Beginning on March 10, 2012, all foreigners over 16 years of age who enter Italy for the first time and apply for a residence permit with a validity of at least one year must sign an “Integration Agreement” (Accordo di Integrazione) at the immigration office (Sportello unico per l’immigrazione) or at the police headquarters (Questura). The new measures do not apply to those already present in Italy.

The agreement regulates the new points system for the permit of stay. Foreigners are accredited with points or credits based on their level of integration into Italian society.

The main points of the agreement include:

Achievement of an “A2″ level of knowledge of the Italian language (slightly higher than the basic level);

Sufficient knowledge of the fundamental principles of Italian law and public administration;

Basic knowledge of Italian public life (e.g., social service, health care);

Compliance with work and tax obligations;

A guarantee that children of school age attend compulsory education.

From the date of signing the agreement, the foreigner has two years to obtain the required minimum points. This can be extended up to three years if necessary. The Ministry of Home Affairs maintains an official register of all foreigners who have signed the integration agreement. The register indicates points obtained by each foreigner. Any changes to the points will be communicated to the relevant person, who will also have access to the register to check status.

NETHERLANDS

The Highly Educated Foreigners Scheme is being expanded to include more universities; family reunification rules are being tightened; and the EU Blue Card salary threshold has been announced for 2012.

Highly Educated Foreigners Scheme Expanded

The Highly Educated Foreigners Scheme for foreign students will be expanded. Currently, foreign students who have graduated with a master’s degree or Ph.D. from one of the universities ranked in the top 150 list from the Times Higher Education Supplement, or from one of the top 150 on the Jiao Tong Shanghai University list, may apply for a residence permit under this scheme. The scheme will be expanded to include the top 200 universities on both lists.

Family Reunification Restricted

The Netherlands will restrict family reunification to spouses, registered partners, and minor children. Unmarried partners and children who are not minors will no longer be eligible for family reunification.

A same-sex partner who is not allowed to marry by law in his or her country of origin may be eligible for a temporary residence permit in the Netherlands for a period of six months. During these six months, the same-sex partners must marry in the Netherlands or form a registered partnership. The Dutch cabinet has agreed with these changes, proposed by the Minister for Immigration and Asylum. They will be introduced in the Dutch parliament soon.

EU Blue Card: Salary Threshold 2012

The salary threshold to be eligible for the EU Blue Card in 2012 is EUR 60,000 (gross) per year (including 8% holiday allowance). This is the same salary threshold as in 2011.

SOUTH AFRICA

Significant amendments to the Refugees Act and the Immigration Act, 2002, are expected; among other things, applying to change a visitor permit to a work or medical permit will be prohibited. Also, those wishing to work in South Africa for longer than three months must obtain an appropriate permit.

Pending Changes to the Work Permit Regime

Outside of refugee movements (which are regulated by the Refugees Act), immigration in South Africa is regulated by the Immigration Act, 2002, and the regulations to that Act. Two significant amendments to each of these Acts are expected. The Department of Home Affairs is revising the regulatory regime underpinning these Acts. These amendments may come into operation in the second quarter of 2012 or possibly as soon as the end of April 2012.

Under the current Act (and even its predecessor), it is entirely lawful for an expatriate employee to travel to South Africa immediately to take up a post, particularly if he or she is the holder of a visa-exempt passport. The employee would enter the country as a visitor and then apply from inside the country for the appropriate work or transfer permit. Even if his or her visitor permit had expired before the main application had been adjudicated and approved, in practice the Department’s receipt for the application would serve as a de facto permit to remain in the country. It would not be a de facto “interim” work permit, however.

The new Act expressly provides that, from whenever it comes into operation, a person cannot travel into the Republic as a “visitor” and then, within a week or two, apply for a work permit. The new Act reasons that to say that one is entering the country on the basis of being a visitor when he or she knows that the real purpose is to take up a position constitutes misleading the Department and entering on the basis of misrepresentation. So applying to change a visitor permit to a work permit (or medical permit) will be strictly prohibited. The visitor must instead return to his or her country of ordinary residence (with the family) and apply through the appropriate Embassy for the correct permit.

The new Act provides that “internal” changes of purpose will only be allowed in exceptional circumstances to be defined by the Minister in the new regulations.

Short-Term Deployments to South Africa: No ‘Back Door’ Work Permits

The South African Department of Home Affairs issued a confidential directive in December 2011 that seeks to regulate the issue of short-term work authorizations. The holders of visa-exempt passports (for example, U.S., Canadian, and European Union (EU) passports) are most affected.

Immigration legislation allowed for persons needing to enter the Republic to work, so long as the work was for no longer than three months. This special category of visitor permit could be obtained upon arrival at a port of entry, so long as the passport was visa-exempt. This type of permit was intended principally for film crews, performing artists, models and support staff, counsel needing to consult with clients, and other such legitimate short-term deployments.

Until recently, the practice had been that upon presentation of a letter from the offshore employer asking for such short-term work authorization, this subcategory of visitor permit would be issued at the port of entry for a period of three months. However, the ease with which this could be done led to considerable abuse. There were instances of people actually working in the Republic on these visitor permits for years by “commuting” home every three months. This, it was thought, allowed the employer to bypass the requirements for an ordinary work permit. The Department of Home Affairs views such practice as immigration fraud.

The new regime has a number of key features. A well-motivated representation must be submitted in writing to the Director General of Home Affairs at least 10 days before the person is scheduled to arrive in South Africa. The Director General must approve the request in writing, and the employee must submit that approval to the port of entry upon arrival. This permit may only be obtained at a port of entry or at an embassy. The permit will not be extended; anyone needing to stay and work for longer than 90 days must instead apply for an appropriate work permit.

• Canada
• Japan
• Russia
• United Kingdom

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February 2012

Canada

Following the termination of the Facilitated Process of Information Technology Workers Program (Labor Market Exemption) in British Columbia in December of 2011 and in all other provinces in September of 2010, Quebec authorities have also announced the end of the program for the seven different types of IT occupations. The Program expedited the admission of foreign workers in certain IT occupations, mainly those in software development.

As a result, Citizenship and Immigration Canada will require Labor Market Opinions (LMO) for those temporary foreign IT workers who previously qualified for the exemption. The process will be much lengthier and will require a job posting of at least fourteen days, followed by an application for the LMO work permit.

Japan

Effective July 9, 2012, there will be a new Residency Management System for all foreign nationals residing in Japan. Consequently, the existing Alien Registration Card (ARC) will be replaced by a new Resident Card, which will serve as a form of identification for those foreigners working and living in Japan for more than 90 days. The Resident Card will be issued upon arrival at the four major international airports in Japan: Chubu, Haneda, Kansai and Narita. Those travellers entering through other airports will receive their Resident Card in the mail after they arrive in Japan.

The new program will reduce the minimum period of stay from one year to three months and extend the maximum period of stay from three years to five years. Those Resident Card holders travelling abroad while in Japan will no longer need to obtain a re-entry permit as long as they return within one year. Currently, a re-entry permit is required for any travel outside of Japan.

Foreign nationals currently holding valid ARCs that expire on or after July 8, 2015 must obtain the new Resident Card, but can do so anytime before that date. All others can continue using their current ARCs until expiration and obtain the Resident Card at the time of renewal.

Russia

The Russian government has announced the work permit quota for 2012, as well as the list of forty-one positions that are quota exempt. The quota number has not changed significantly since last year and will continue to be distributed amongst the various regions in the country. Companies looking to sponsor foreign workers in Russia in 2013 must submit their forecasts to the local labour authorities before May 1st, 2012.

Six new positions have been added to the quota exempt position list since last year, including design engineers, electrical engineers and technicians. Please contact your immigration team for the full list of exempt positions. Work permits for highly skilled professionals continue to be quota exempt but they must meet strict salary requirements.

United Kingdom

The UK Government is urging all those who plan to come to the UK during the Olympic Games to plan ahead and begin making travel arrangements, including securing any necessary visas. The London 2012 Games will be the biggest event that the UK has hosted and the government expects many extra visitors during the already busy summer season.

The UK Government has also announced the creation of a new agency, the UK Border Force, which will take over border control and inspection procedures at the UK ports of entry starting March 1, 2012. The UK Home Secretary said that after it was revealed that thousands of people were let into the country without proper immigration checks, that the UK Border Agency (UKBA) would be split into two separate bodies. The Border Force will “become a separate operational command, with its own ethos of law enforcement, led by its own Director General, and accountable directly to ministers.” The UK Border Agency (UKBA) will continue to manage immigration administrative functions such as processing work and residence permit applications.

• Passenger Prescreening Initiative Expands to Additional Airports — The new airports include Logan, JFK, Newark, O'Hare, San Francisco and both Washington, DC, airports.
• USCIS Ombudsman Recommends Improving Adjudication Quality for Extraordinary Ability and Other Employment-based Adjudications — An objective standard continues to elude adjudicators.
• More than One Million Employers Use E-Verify; USCIS Announces Expansion of Self Check — Self Check is now available in all states and territories.
• Webinars on Employment Verification — Scheduled for March and April.

To Subscribe to this newsletter, please send an email to listserver@immigrationlaw.com requesting "Subscribe" in the subject line.]]> Pearl Immigration NewsFlash

General Release Vol. 131 (February 23, 2012)

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)

Passenger Prescreening Initiative Expands to Additional Airports — The new airports include Logan, JFK, Newark, O’Hare, San Francisco and both Washington, DC, airports.

USCIS Ombudsman Recommends Improving Adjudication Quality for Extraordinary Ability and Other Employment-based Adjudications — An objective standard continues to elude adjudicators.

More than One Million Employers Use E-Verify; USCIS Announces Expansion of Self Check — Self Check is now available in all states and territories.

Webinars on Employment Verification — Scheduled for March and April.

Details…

Passenger Prescreening Initiative Expands to Additional Airports

On February 8, 2012, the Department of Homeland Security announced the expansion of TSA Pre✓™, a passenger prescreening initiative, to additional airports across the country. More than 336,000 passengers have been screened through TSA Pre✓™ lanes in the seven pilot locations (Atlanta, Dallas-Fort Worth, Detroit, Las Vegas, Los Angeles, Miami and Minneapolis). Under this initiative, the Transportation Security Administration (TSA) provides expedited screening for travelers who volunteer information about themselves before flying, which enables TSA to focus their efforts on passengers about which they know less.

TSA Administrator John S. Pistole said the agency is moving away from a one-size-fits-all approach to “a more intelligence-driven, risk-based transportation security system.”

Eligible participants include certain U.S. citizens who are frequent flyers with participating airlines (currently American and Delta with US Airways, Alaska Airlines and United joining later this year) as well as members of U.S. Customs and Border Protection’s Trusted Traveler programs (Global Entry, SENTRI and NEXUS). If TSA determines a passenger is eligible for expedited screening following the TSA Pre✓™ vetting process, they will embed the information in the barcode of the passenger’s boarding pass, which TSA then reads at the security checkpoint. They may refer the passenger to a TSA Pre✓™ lane, where that person will undergo expedited screening, which could mean no longer taking off shoes, belts and light outerwear and/or removing laptops and 311-compliant bags from carry-ons.

TSA said it will continue to “incorporate random and unpredictable security measures throughout the airport” and that no individual will be guaranteed expedited screening. As part of the agency’s risk-based security initiative, TSA is testing several other screening initiatives related to providing positive ID verification for airline pilots and the use of expanded behavior detection techniques.

The announcement, which includes a list of airport locations where TSA Pre✓™ will be implemented throughout the year, is available at http://www.dhs.gov/ynews/releases/20120208-tsa-precheck-pilot-expands.shtm.

» Back to Top

USCIS Ombudsman Recommends Improving Adjudication Quality for Extraordinary Ability and Other Employment-based Adjudications

In December 2010, the U.S. Citizenship and Immigration Services (USCIS) issued an I-140 adjudication policy memo and in a recent report, the USCIS Ombudsman noted that stakeholders have raised concerns about consistency in adjudications of extraordinary ability and other employment-based petitions, focusing on the subjective nature of final merits determinations. The Ombudsman noted that USCIS has been challenged in identifying an objective standard and application for a final merits determination, and some Immigration Services Officers (ISOs) report that the I-140 policy memo did little to change their analyses of I-140 petitions.

To improve fairness, consistency and transparency in adjudications of these petitions, the Ombudsman made the following recommendations to USCIS:

conduct formal rulemaking to clarify the regulatory standard and, if desired, explicitly incorporate a final merits determination into the regulations;

in the interim, provide public guidance on the application of a final merits determination; and

in the interim, provide ISOs with additional guidance and training on the proper application of the “preponderance of the evidence” standard when adjudicating EB-1-1, EB-1-2 and EB-2 petitions.

The Ombudsman gave the following reasons for these recommendations:

stakeholders are concerned that the current I-140 policy memo allows for too much subjectivity in adjudicating petitions;

stakeholders presented in an amicus curiae briefing to USCIS’ Administrative Appeals Office that the decision in Kazarian v. USCIS does not require USCIS to implement a two-part review as provided for in the I-140 memo, and that application of the I-140 policy memorandum has not resulted in a clearer adjudicatory standard;

ISOs lack guidance that clearly demonstrates the nature and type of evidence that typically establishes whether an individual possesses “extraordinary ability,” may be classified as an “outstanding professor or researcher,” or has “exceptional ability”; and

USCIS has not clearly explained the objective factors that USCIS adjudicators should consider when conducting a final merits determination.

The Ombudsman noted that the December 2010 I-140 policy memo rescinded and superseded all previously published USCIS policy guidance regarding EB-1 adjudications. It is available at http://www.uscis.gov/USCIS/Laws/Memoranda/i-140-evidence-pm-6002-005-1.pdf.

» Back to Top

More than One Million Employers Use E-Verify; USCIS Announces Expansion of Self Check

Last month USCIS announced that in December 2011, E-Verify reached a milestone: employers are now using E-Verify at more than one million worksites.

On February 9, 2012, USCIS also announced that Self Check, a free online service of E-Verify that allows workers to check their own employment eligibility status, is now available in all 50 states; Washington, DC; Guam; Puerto Rico; the U.S. Virgin Islands; and the Commonwealth of the Northern Mariana Islands. Launched in March 2011, Self Check was developed through a partnership between the Department of Homeland Security (DHS) and the Social Security Administration (SSA) to provide a tool for workers to check their own employment eligibility status and guidance on how to correct their DHS and SSA records. It is the first online E-Verify service offered directly to workers. A Spanish-language version was added in August 2011.

The E-Verify announcement can be found here: http://www.uscis.gov/USCIS/Verification/E-Verify/E-Verify_Native_Documents/Newsletters/E-Verify-Connection06.pdf and the self-check announcement can be found here: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3dc19bbc3d265310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

» Back to Top

Webinars on Employment Verification

The Department of Justice’s Office of Special Counsel for Immigration-related Unfair Employment Practices has announced upcoming monthly webinars on employment verification issues. Workers and worker advocates may join the monthly worker/advocate track webinar, and employers/HR professionals may join the monthly employer track webinar. The next employer/HR webinars are scheduled for March 21 and April 30, 2012. The next worker/advocate webinars are scheduled for March 13 and April 17, 2012. For more information or to register, go to http://www.justice.gov/crt/about/osc/webinars.php.

» Back to Top

• Upcoming DHS Reforms Geared to Attracting and Retaining Highly Skilled Immigrants

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(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.

• Australia
• China
• European Union
• Netherlands
• Switzerland

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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.

• 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.

To Subscribe to this newsletter, please send an email to listserver@immigrationlaw.com requesting "Subscribe" in the subject line.]]> 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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• 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.

To Subscribe to this newsletter, please send an email to listserver@immigrationlaw.com requesting "Subscribe" in the subject line.]]> 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.

• 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.

To Subscribe to this newsletter, please send an email to listserver@immigrationlaw.com requesting "Subscribe" in the subject line. ]]> 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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• Brazil — Overseas Travel Restricted for Foreigners Not Yet Registered in Rio de Janeiro
• Italy — Italy Requiring Fingerprints for Short-Term Visas
• Malaysia — Changes to Employment Pass Categories
• United Kingdom — Jobs Removed from the Shortage Occupation List

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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.

• 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.

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General Release Vol. 127 (October 21, 2011)

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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 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.

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.