News from the Alliance of Business Immigration Lawyers Vol. 7, No. 5B • May 15, 2011

Headlines:

1. H-1B Petitions Drop Precipitously – H-1B petition filings as of April have dropped substantially since the same time in previous recent years.

2. USCIS Issues Memo on Procedures for Revocation of a U.S. Passport – The memo provides background and outlines statutes under which U.S. passports may be revoked by the Department of State for reasons such as fraud, nonpayment of child support, drug trafficking, non-repayment of a repatriation loan, or conviction for sex tourism.

3. USCIS Releases Final I-140 Extraordinary Ability RFE Template – USCIS posted the template “for stakeholder visibility” until May 17, 2011.

4. DHS Corrects E-Verify E-Mail Address in Final Rule – The e-mail referenced should be changed to read “E-Verify@dhs.gov‘ instead of “Everify@dhs.gov.”

5. EB-5 Quarterly Stakeholder Meeting Announced – The next engagement will take place via teleconference on June 30, 2011, at 1 p.m. (Eastern Time), and the deadline to submit agenda items is May 27.

6. ABIL Webinar Series: U.S. Investment Visas and Green Cards for Foreign Nationals – The intended audience includes individual investors; potential and actual EB-5 regional centers; attorneys and advisors; real estate developers; and companies seeking capital for development projects.

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

8. Member News – Member News

9. Government Agency Links – Government Agency Links

Details:

1. H-1B Petitions Drop Precipitously

H-1B petition filings as of April have dropped precipitously since the same time in previous recent years, according to reports. U.S. Citizenship and Immigration Services (USCIS) reported that as of April 8, 2011, it had received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees. At the same time last year (April 8, 2010), it had received more than double that number of cap-subject petitions, or approximately 13,500, and about 5,600 petitions for individuals with advanced degrees. The previous year, on April 20, 2009, USCIS announced that it had received approximately 44,000 cap-subject H-1B petitions and 20,000 petitions for those with advanced degrees. (USCIS did not announce the number of petitions received on April 8 in 2009, unlike other years.)

Speculation about the causes of the slowdown ranges from the continued sluggishness of the U.S. economy to skilled workers seeking work in their home countries and increases in visa fees. Some potential H-1B workers have noted that the cost of living is significantly lower in their home countries and they can be close to family and parents, who often cannot be brought to the U.S. because of difficulties in obtaining visas for them. Critics of the program in Congress and elsewhere have also contributed to an overall negative climate for hiring H-1Bs.

The latest USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ebbdb1a97a53f210VgnVCM100000082ca60aRCRD&vgnextchannel=b56db6f2cae63110VgnVCM1000004718190aRCRD.

2. USCIS Issues Memo on Procedures for Revocation of a U.S. Passport

U.S. Citizenship and Immigration Services (USCIS) released a memorandum on April 15, 2011, on procedures for recommending revocation of a U.S. passport to the Department of State (DOS). The memo provides background information and outlines statutes under which U.S. passports may be revoked for reasons such as fraud, nonpayment of child support, drug trafficking, non-repayment of a repatriation loan, or conviction for sex tourism.

The memo notes that in recent months, USCIS employees have on occasion informed people that their U.S. passports were invalid and should be surrendered to DOS. Upon review, however, DOS determined that the passports were valid. DOS then asked that USCIS direct any concerns regarding the validity of a passport to DOS and not to the bearer of the passport.

USCIS lacks the authority to revoke or confiscate a U.S. passport, the memo states. The memo instructs USCIS employees who doubt the validity of a passport not to seize the passport, tell the bearer that there are issues with it, or instruct the bearer to return it to DOS. Instead, USCIS employees are to follow the procedures outlined in the memo to request revocation of the passport from DOS.

It is unclear from the memo whether DOS notifies the passport-bearer directly when a passport is revoked. The memo notes that:

After reviewing the revocation request and reaching a determination, DOS will notify the referring contact person of the decision. DOS (Passport Office of Legal Affairs) generally processes revocation requests within 30-60 days of receipt.

In the case of revocation, DOS will transmit a copy of the revocation letter to the referring contact person. The DOS revocation letter must be placed in the individual’s USCIS record. If DOS revokes the passport, the passport is then marked revoked in the Passport Information Electronic Records System (PIERS) and the information is transmitted to TECS.

The memo is available at http://www.uscis.gov/USCIS/Laws/Memoranda/2011/April/revocation-us-passport-pm-602-0036.pdf.

3. USCIS Releases Final I-140 Extraordinary Ability RFE Template

U.S. Citizenship and Immigration Services (USCIS) has released a final template for requests for evidence (RFEs) with respect to the Immigrant Petition for Alien Worker (Form I-140) for the E11 classification (extraordinary ability in the sciences, arts, education, business, or athletics). USCIS posted the template “for stakeholder visibility” until May 17, 2011. The template outlines the evidence that may be submitted to satisfy the various E11 requirements.

The template is available until May 17 at http://www.uscis.gov/USCIS/Outreach/Feedback%20Opportunities/Draft%20Request%20for%20Evidence%20(RFE)%20Template%20for%20Comment/Final%20RFEs%20for%20Stakeholder%20Viewing/i-140-E11-alien-extraordinary-ability-rfe-template.pdf.

4. DHS Corrects E-Verify E-Mail Address in Final Rule

On April 15, 2011, the Department of Homeland Security published a final rule in the Federal Register (76 Fed. Reg. 21225) establishing the documents acceptable for employment eligibility verification. There was an inadvertent error in the final rule. The e-mail referenced should be changed to read “E-Verify@dhs.gov‘ instead of “Everify@dhs.gov.”

The DHS notice is available at http://edocket.access.gpo.gov/2011/pdf/2011-10344.pdf.

5. EB-5 Quarterly Stakeholder Meeting Announced

U.S. Citizenship and Immigration Services’ Office of Public Engagement and Service Center Operations Directorate issued a public invitation for participants to discuss the EB-5 immigrant investor program. The next engagement will take place via teleconference on June 30, 2011, at 1 p.m. (Eastern Time). The deadline to submit agenda items is May 27. The engagement after that will take place on September 15, 2011, via teleconference and also in person in Washington, DC, and the deadline to submit agenda items for the latter meeting is August 15, 2011.

Each engagement will be an opportunity for USCIS to share information on the EB-5 program and address stakeholders’ related topics of interest. USCIS noted that there will be an open forum for questions and answers at each of these engagements, but the agency will not address case-specific inquiries.

To respond to this invitation, e-mail the Office of Public Engagement at public.engagement@dhs.gov by June 29, 2011, and reference the following in the subject line of your e-mail: “EB-5 – Phone”. Include your full name and the organization you represent, if any, in the body of the e-mail.

To submit agenda items and questions, RSVP via e-mail and attach a Word document or PDF with suggested items. All submissions for the June 30 teleconference should be received by the Office of Public Engagement by the close of business on Friday, May 27, 2011.

The meeting invitation is available at http://www.uscis.gov/USCIS/Outreach/Upcoming%20National%20Engagements/National%20Engagement%20Pages/2011%20Events/June%202011/EB_5_Engagement_June_2011.pdf.

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

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

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

Session 1: Visa options for individual investors: E and L nonimmigrant visas; EB-5 green cards through direct investments or regional centers, was held on April 13. (A recording of the webinar is available for purchase.) Moderated by Bernard P. Wolfsdorf. Presenters: Kehrela Hodkinson, Mark Ivener, and Stephen Yale-Loehr.
Session 2: EB-5 regional center applications and project pre-approval petitions, to be held July 6 at 3 p.m. (ET). Moderated by Laura Danielson. Presenters: Bryan Funai, H. Ronald Klasko, and Steve Trow.
Session 3: How to successfully navigate the back end of the EB-5 process for both individual investors and regional centers, to be held August 16 at 3 p.m. (ET). Moderated by Steve Clark. Presenters: H. Ronald Klasko, Robert Loughran, and Stephen Yale-Loehr.

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

7. New Publications and Items of Interest

Prevailing wage conferences: The U.S. Department of Labor’s Wage and Hour Division announced that it will host four upcoming free conferences throughout the U.S. on prevailing wage requirements under the Davis-Bacon Act, the McNamara-O’Hara Service Contract Act, and the labor standards provisions of the American Recovery and Reinvestment Act of 2009. The intended audience includes contractors, contracting officials, unions, workers, and other interested parties. Topics will include the wage and fringe benefit requirements that apply to federal and federally assisted contracts.

The conferences will be held May 24-26 in New York City; July 12-14 in Phoenix, Arizona; August 2-4 in Denver, Colorado; and August 16-18 in Las Vegas, Nevada. To attend one of the conferences, send an e-mail to whdpwc@dol.gov that includes the participant’s name, title, organization, and e-mail address, as well as the location of the conference. There is no fee for attending, but space is limited.

For more information regarding the upcoming prevailing wage conferences, as well as information on the DBA, SCA, and Recovery Act, see http://www.dol.gov/whd/recovery or call the Wage and Hour Division’s toll-free helpline at 866-4US-WAGE (487-9243).

Q&A on I-129 export controls requirements: On March 24, 2011, U.S. Citizenship and Immigration Services’ Ombudsman’s Office hosted a public teleconference regarding new export controls data collection requirements in Part 6 of the Petition for a Nonimmigrant Worker (Form I-129) and interviewed two U.S. Department of Commerce Bureau of Industry and Security officials, Bernie Kritzer, Director of Exporter Services, and Steve Hall, Senior Policy Analyst in the Office of Exporter Services. A summary of questions and answers from the teleconference includes where to go for additional information, how to determine whether a company needs a deemed export controls license, how to apply for such a license, what are best practices while waiting to obtain a license, and to which employees the requirements apply, among other things.

The Q&A summary is available at http://www.dhs.gov/xabout/structure/cisomb-telecon-export-controls-commerce-dept.shtm. The Commerce Department has published one set of FAQs on its website at http://www.bis.doc.gov. USCIS is developing a set of FAQs regarding the new Form I-129 Part 6.

8. Member News

H. Ronald Klasko (bio: http://www.abil.com/lawyers/lawyers-klasko.cfm?c=US) and Stephen Yale-Loehr (bio: http://www.abil.com/lawyers/lawyers-loehr.cfm?c=US) spoke together on a panel at the annual conference of the Association to Invest In the USA on May 10, 2011, in Washington, DC, about EB-5 immigrant investor training materials recently released by U.S. Citizenship and Immigration Services (USCIS). The materials were released pursuant to a Freedom of Information Act request filed by Mr. Klasko. Messrs. Klasko and Yale-Loehr noted that the training materials provide the best glimpse yet into what standards USCIS uses when deciding EB-5 petitions. They also suggested that USCIS is scrutinizing EB-5 filings more closely than in the past, as the number of EB-5 petitions continues to increase.

Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm?c=US) has posted a new blog entry, “Reflecting on Our Immigration Policy After Osama bin Laden’s Death,” available at http://cyrusmehta.blogspot.com/2011/05/reflecting-on-our-immigration-policy.html.

Mr. Mehta spoke on May 2, 2011, at the American Immigration Lawyers Association’s New York Chapter meeting, which focused on PERM and recent important BALCA decisions on alternative requirements, recruitment issues, post-recruitment/errors, and emerging trends.

Angelo Paparelli (bio: http://www.abil.com/lawyers/lawyers-paparelli.cfm?c=US) has published a new blog entry, “Hillary’s New Arsenal of Immigration Drones,” available at http://nationofimmigrators.mt4temp.lexblognetwork.com/foreign-policy/hillarys-new-arsenal-of-immigration-drones/.

Julie Pearl (bio: http://www.abil.com/lawyers/lawyers-pearl.cfm?c=US) was quoted in a Wall Street Journal article on the drop in H-1B visa petitions published on May 7, 2011. Commenting on the reasons why companies may be taking their time to file this year, she noted that “HR people are aware there’s no rush on H-1Bs.”

The Alliance of Business Immigration Lawyers’ (ABIL) Global Immigration Network presented a Global Mobility Conference in London, England, on May 5, 2011. ABIL presenters included:

Conference information is available at: http://abil.com/confs/abil_global_mobility_conference.cfm.

Topics included:

Compliance related to immigration and tax, as well as criminal liability
Best practices in global mobility through a case study
Global mobility trends and hot topics from multiple countries

The conference was presented by ABIL and co-sponsored by Baker Tilly International, a network of accountancy and business advisory firms.

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/bulletin/bulletin_1360.html