Headlines:
1. USCIS Conducts Comprehensive Policy Review, Holds Session on RFEs – USCIS has launched a comprehensive effort to review all agency policies with the participation of both its workforce and the public.
2. Controversial New Arizona Statute Signed Into Law – The governor of Arizona signed a law that directs local police to make immigration status determinations and makes it a misdemeanor to lack proper immigration documents.
3. DOS Requests Comments on SEVIS – The SEVIS forms have been revised to clarify language used and remove unnecessary data collection.
4. ICE Plans More Visa Security Units – The program is intended to maximize the visa process as a counterterrorism tool.
5. USCIS Advises Foreign Nationals Whose Work Permits Expire Before CNMI-Only Visa Categories Are Available – Certain foreign nationals without umbrella permits whose work permits expire before new visa categories are available to them may be eligible for an interim status.
6. ABIL Global: The Scope of Immigration Laws for International Investors in Brazil – The entrepreneur has to convince the Brazilian authorities that his or her work will bring new jobs to Brazilians and develop the Brazilian market.
7. New Publications and Items of Interest – New Publications and Items of Interest
8. Recent News From ABIL Members – Recent News From ABIL Members
9. Government Agency Links – Government Agency Links
Details:
1. USCIS Conducts Comprehensive Policy Review, Holds Session on RFEs
U.S. Citizenship and Immigration Services (USCIS) has launched a comprehensive effort to review all agency policies with the participation of both its workforce and the public. USCIS invited outside stakeholders to identify their highest priorities for the policy review through a two-week survey that ended on April 29, 2010. USCIS said it will publish a summary of the results later this spring.
Throughout the policy review, USCIS said it will continue to seek feedback from its workforce and external stakeholders to ensure that the resulting policies are “informed, responsive, and effective.”
As part of USCIS’s overall efforts to review agency policies, on April 12, 2010, USCIS Director Alejandro Mayorkas and the head of the Service Center Operations Directorate, Donald Neufeld, held a listening session for U.S. national stakeholders to review and revise the Request for Evidence (RFE) templates. This was the first time that the USCIS held a dialogue with stakeholders to obtain their feedback on how to improve the RFE process and to clarify any concerns that have arisen due to recent changes, the Alliance of Business Immigration Lawyers noted. The reviewed types included the O (extraordinary ability or expertise), P (athletes and entertainers), Q (cultural exchange), and EB-1 (first preference extraordinary ability) visa categories.
At the session, a number of people asked about a January 8, 2010, guidance memorandum by Mr. Neufeld, and expressed unease about the number of RFEs that are being issued on cases that used to be approved. Mr. Mayorkas and Mr. Neufeld replied that they will offer more opportunities for the public to understand the adjudication process while taking into account the needs of employers, attorneys, and immigrants.
USCIS’s announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=d0c77dfffc108210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD. A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=66681f7af1208210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
2. Controversial New Arizona Statute Signed Into Law
On April 23, 2010, Governor Jan Brewer of Arizona signed a tough new measure (S.B. 1070) into law that directs local police to make immigration status determinations if there is a “reasonable suspicion” a person may be undocumented, and makes it a misdemeanor to lack proper immigration documents. The law is scheduled to take effect by August.
Gov. Brewer said the new law “represents another tool for our state to use as we work to solve a crisis we did not create and the federal government has refused to fix.” Sen. John McCain (R-Ariz.), who is campaigning in a primary against a challenger who has made immigration a main issue, came out in favor of the law only hours before its passage by the state Senate.
Controversy and protests have swirled around the new law. Those opposed are especially concerned about racial and ethnic profiling and the effects of criminalizing a person’s failure to carry immigration documents. “A lot of U.S. citizens are going to be swept up in the application of this law for something as simple as having an accent and leaving their wallet at home,” warned Alessandra Soler Meetze, president of the American Civil Liberties Union (ACLU) of Arizona. The ACLU plans to sue to block the legislation.
Moments after Gov. Brewer signed the law, the Board of Governors of the American Immigration Lawyers Association called for a boycott of Arizona, instructing its Executive Committee to move the Association’s fall 2010 conference, previously scheduled for Arizona, to another state. AILA President Bernie Wolfsdorf explained, “We cannot in good conscience spend association dollars in a state that dehumanizes the people we represent and fight for. What Governor Brewer has done by signing this bill into law is to validate all of the irrational fears by people who are not willing to acknowledge the economic and cultural benefits of immigration to our country. If Arizonans are serious about ending illegal immigration, they should be the first in line at the United States Capitol to urge Congress to the do the right thing and pass comprehensive immigration reform.”
AILA stated that in addition to being unconstitutional under the Supremacy Clause of the U.S. Constitution, the law effectively authorizes police to engage in racial profiling and permits citizens to sue any state or local agency if they believe it is failing to enforce the law. “On top of making laws that will be struck down in the courts, it will hurt business and even bankrupt local municipalities. We’ve seen this happen in other localities trying to be tough on immigration but in the end hurting their own economies,” Mr. Wolfsdorf said. AILA cited the example of Tulsa, Oklahoma, where two months after a harsh 2008 law went into effect, construction work was being left unfinished and local businesses were losing customers. AILA also noted that such laws add enforcement of federal immigration law to already overburdened local police departments. Police unions backed the new law, but the state police chief’s association opposed the bill, noting that it could damage trust in immigrant communities among potential witnesses.
PolitiFact recently published a fact-checking article examining the issue of racial or ethnic profiling with respect to the new law. The article is available at http://www.politifact.com/truth-o-meter/statements/2010/apr/28/alfredo-gutierrez/arizona-immigration-law-allows-police-question-any/.
The text of the new Arizona law is at http://www.azleg.gov/legtext/49leg/2r/bills/sb1070h.pdf. A summary of the law is at http://www.azleg.gov/legtext/49leg/2r/summary/h.sb1070_04-15-10_houseengrossed.doc.htm.
3. DOS Requests Comments on SEVIS
The Department of State has issued a request for comments on the recording, reporting, and data collection requirements under the Student and Exchange Visitor Information System (SEVIS). SEVIS is used to monitor foreign students and exchange students in the United States. The forms have been revised to clarify language used and remove unnecessary data collection. Comments will be accepted up to 60 days from April 22, 2010, and may be submitted by e-mail, mail, or online to the location named in the notice, which is available at http://edocket.access.gpo.gov/2010/pdf/2010-9325.pdf.
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4. ICE Plans More Visa Security Units
U.S. Immigration and Customs Enforcement (ICE) recently announced that the agency plans to expand its visa security units from 12 countries to 16 this year and an additional country next year. ICE works with the Department of State to identify high-risk posts to receive visa security units. The program, intended to maximize the visa process as a counterterrorism tool, assigns experienced special agents to visa security units overseas to review visa applications, initiate investigations, and provide advice and training to consular officers.
The list of countries to be added has not been announced, but the Department of Homeland Security separately has identified 14 nations whose citizens underwent mandatory secondary screening for a temporary period after the Christmas Day bombing attempt: Afghanistan, Algeria, Cuba, Iran, Iraq, Lebanon, Libya, Nigeria, Pakistan, Saudi Arabia, Somalia, Sudan, Syria, and Yemen. Currently, ICE has visa security units in Canada, Egypt, Germany, Hong Kong, Indonesia, Jordan, Morocco, Pakistan, Philippines, Saudi Arabia, United Arab Emirates, and Venezuela.
Sen. John Cornyn (R-Tex.) and Rep. Lamar Smith (R-Tex.) introduced companion bills on March 4, 2010, in the House and Senate to fund 16 visa security units in high-risk nations, including Algeria, Colombia, India, Iraq, Jerusalem, Kuala Lumpur, Kuwait, Lebanon, Mexico, Nigeria, South Africa, Syria, Tel Aviv, Turkey, United Kingdom, and Yemen.
The Department of Homeland Security’s Office of Inspector General released a report in 2008 on the visa security unit program. The report is available at http://www.dhs.gov/xoig/assets/mgmtrpts/OIG_08-79_Jul08.pdf.
5. USCIS Advises Foreign Nationals Whose Work Permits Expire Before CNMI-Only Visa Categories Are Available
U.S. Citizenship and Immigration Services (USCIS) announced on April 21, 2010, that it will grant parole-in-place status to certain foreign nationals in the Commonwealth of the Northern Mariana Islands (CNMI). Foreign nationals without umbrella permits whose work permits expire before new visa categories are available to them under federal immigration laws may be eligible for this interim status.
Certain employers and their foreign national employees did not apply for umbrella permits covering the two-year transition period to federal immigration law. They may have planned to apply for CNMI-only transitional worker visas immediately after the transition period began in November 2009. However, a court ruling that month stopped this nonimmigrant category from being available. As a result, some foreign nationals face losing their legal immigration status because of a gap between the expiration of their current CNMI work permit and the availability of the new “CNMI-Only Transitional Worker” status.
Certain foreign nationals with CNMI investor permits may also face a gap between the expiration date of their CNMI investor permit and the availability of the “CNMI-Only E-2 Investor” status.
Parole-in-place would give affected foreign nationals authorization under federal immigration law to remain in the CNMI and permit continued employment authorization until the CNMI-only transitional worker program and the CNMI investor status are implemented.
USCIS’s announcement includes details about how and where to apply for parole-in-place and what documents to submit. The announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=72aaf95c93228210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.
6. ABIL Global: The Scope of Immigration Laws for International Investors in Brazil
From the moment we retrace a historical review of immigration’s legislative structure for investors in Brazil, we perceive that in the last 11 years the Entrepreneurs’ Visa had three different normative resolutions with their respective minimum investment. Normative Resolution N. 28, from November 25, 1998, originally defines that the foreign investment has to be US$ 200,000.
On October 6, 2004, the Brazilian legislature altered the requirements and modified this resolution. The new Normative Resolution, N. 60, established the foreign investment as US$ 50,000.
Recently, a new resolution, Normative Resolution N. 84, was established in February 10, 2009, with a minimum investment of R$ 150,000 (about US$ 80,000). This new resolution includes more detailed procedures related to the current and sustainable Brazilian economy.
In both cases, an absorption plan of Brazilian manpower must be presented. In addition to this requirement, the sponsor of the visa is always the Brazilian company of which the foreign national is partner.
The Brazilian company must open a Brazilian bank (in Reais) account in order to receive the foreign investment. The entrepreneur needs to send the money in his or her own name (individual) for the bank account of the Brazilian company. It is not mandatory that all the money be invested at the same time, but the money must be registered with the Brazilian Central Bank. To certify this investment, the articles of Incorporation must include a clause stating that the foreign money is integrated into the Brazilian company.
Subsequent to the investment, the entrepreneurs must obtain a conditional permanent visa, valid for three years. During this three-year period, the foreign national may only provide services for the Brazilian company that sponsored the visa. This condition is written in his or her Brazilian ID Card.
The creation of employment and revenue in Brazil is the most important condition for obtaining this visa. Related to that, the absorption plan of Brazilian manpower must be executed in the first year of the Brazilian company after the arrival of the entrepreneur. The company may hire and/or employ Brazilian manpower other than its stated direct absorption plan of the investor program, but it is mandatory to fulfill the original numbers.
For the investor program, it is mandatory to present the number of employees and posts, the salaries that will be paid, and the amount of investment in the capacity and qualifications of the Brazilian employees in the first three years. It is also necessary to include information about the economic section and localization of the Brazilian company and its importance for the development of the relevant region. Due to a diversified Brazilian social structure, the investment will have a different effect according to the region.
In this connection (Investment-Social Impact), it should be emphasized that it is not mandatory to invest the amount of R$ 150,000 but a foreign investment is mandatory. Specifically, the social interest issue is considered very important, and the entrepreneur has to convince the Brazilian authorities that his or her work will bring new jobs to Brazilians and develop the Brazilian market; i.e., improve the life of the Brazilian people. If the entrepreneurs are from South America, they will receive special consideration from the members of the National Immigration Council.
There are no minimum qualifications to apply for an investor visa except for the investment. The foreign national may be accompanied by his or her family (spouse and children), who will receive the status of dependents. Once the application is filed with the Ministry of Labor, the processing time is usually 30 days, while the processing time with the National Immigration Council is about 5 months.
The global economic crisis did not affect investments in Brazil. In fact, it made foreign entrepreneurs see that Brazil is a very good country in which to invest, with its stable economy, democracy, consumer market, and natural resources. Unfortunately, we should not forget the Brazilian bureaucracy and its effects on the timeframe of the constitution of a Brazilian company. However, Brazil is improving and let us not forget that the country was built by foreign nationals and will only become a much more developed country with their efforts.
7. New Publications and Items of Interest
Immigration and occupations. The New York Times recently analyzed Census data and surveys of American attitudes about immigration. The analysis found that although the common perception is that a surge in immigration has overwhelmed the U.S. with low-wage foreign laborers, in reality the 25 million immigrants who live in the largest metropolitan areas in the U.S. are nearly evenly distributed across jobs and incomes, and in 14 of the 25 largest metro areas, more immigrants are employed in white-collar occupations (e.g., professionals, technicians, administrators) than in lower-wage work (e.g., construction, manufacturing, cleaning). The conclusions were based on Census data, a survey published in February’s American Political Science Review, and data analysis conducted by the Fiscal Policy Institute for the New York Times.
The New York Times article is available at http://www.nytimes.com/2010/04/16/us/16skilled.html.
Green card statistics. The Department of Homeland Security’s Office of Immigration Statistics released its Annual Flow Report in April 2010. The report shows that in 2009, a total of 1,130,818 persons became legal permanent residents (LPRs) in the U.S. Nearly two-thirds were granted green cards based on a family relationship. The leading countries of birth of new LPRs were Mexico (15 percent), China (6 percent), and the Philippines (5 percent). Legal immigration increased 2.1 percent from 1,107,126 in 2008 to 1,130,818 in 2009. LPR adjustments of status increased 4.2 percent from 640,568 in 2008 to 667,776 in 2009. Adjustments of status in 2009 were driven by a decrease in applications pending a decision rather than an increasing number of applications received during 2009. Fifty-nine percent of new LPRs in 2009 were adjustments of status and 41 percent were new arrivals California was the state of residence of one-fifth (20 percent) of persons gaining LPR status in 2009. Other leading states of residence included New York (13 percent), Florida (11 percent), Texas (8.4 percent), and New Jersey (5.2 percent).
The report is available at http://www.dhs.gov/xlibrary/assets/statistics/publications/lpr_fr_2009.pdf.
8. Recent News From ABIL Members
Mark A. Ivener (bio: http://www.abil.com/lawyers/lawyers-ivener.cfm) had an article published in the April 2010 STEP Journal (Society of Trust and Estate Practitioners), “Three Important Immigration Issues Affecting Trust and Estate Attorneys: EB-5 Investor Green Cards; Green Cards and the Exit Tax; and Unplanned U.S. Citizenship.”
Stephen W. Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm) commented that the new Arizona law is a recipe for confusion, in PolitiFact. “The courts will have a hard time deciding what constitutes a reasonable suspicion,” he said. Mr. Yale-Loehr also noted in the April 27, 2010, edition of ComputerWorld that the papers immigrants will now be required to carry in Arizona “are very valuable and [immigrants] usually don’t want to take them with you to the gym or the grocery store.” Mr. Yale-Loehr noted that employers will, at the least, “be putting out memos to all of their H-1B workers telling them to make sure they carry around their H-1B documents at all times. Depending on how the law is enforced in the long run, Mr. Yale-Loehr said, “it could slow down the willingness of companies to invest in Arizona if they hire a lot of noncitizens.” The PolitiFact article is available at http://www.politifact.com/truth-o-meter/statements/2010/apr/28/alfredo-gutierrez/arizona-immigration-law-allows-police-question-any/. The ComputerWorld article is available at http://www.computerworld.com/s/article/9176019/Arizona_s_new_papers_please_law_may_hurt_H_1B_workers.
Maria Lianides Celebi (bio: http://www.abil.com/lawyers/lawyers-celebi.cfm), ABIL Global member, was invited to a meeting with Turkey’s Minister of Labor and Social Security, Omer Dincer, to discuss work permits, among other labor topics. The meeting was arranged by the American Chamber of Commerce, which asked Ms. Celebi as their Work Permit Advisor. Discussed at the meeting were issues and questions regarding the issuance of work permits, particularly since changes in Turkey’s law this winter.
During the meeting, Ms. Celebi and her group conveyed concern about whether the one-year interim work permits for engineers/architects have been implemented; the lack of public guidance over the implications of the new biographical questions on the work permit application; and the lack of transparency in denials, among other things. Minister Dincer said he was assured by the Work Permit Directorate that the one-year interim work permits for engineers/architects are in place. Minister Dincer also expressed a desire to keep adjudications down to the new one-month statutory period.
Ms. Celebi noted that electronic filing of work permit applications was recently implemented by the Turkish Ministry. However, supporting documents must still be delivered in hard copy.
9. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online: https://egov.uscis.gov/cris/processTimesDisplay.do
Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/times.cfm
Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html
