Headlines:
1. India, China EB-2 Category Unavailable for Remainder of FY 2012 – The Department of State’s Visa Office has announced that this category is now “Unavailable” for both India and China and will remain so for the remainder of fiscal year 2012.
2. NLRB Issues Guidance on Compliance Cases – Among other things, a respondent may not use the compliance phase as a means to fish for disabling employee conduct under IRCA.
3. Labor Dept. Says Preliminary Injunction on H-2B Final Rule Calls Into Doubt Its Authority – The Department said the preliminary injunction calls into doubt the authority of the Department of Labor to fulfill its responsibilities under the INA and Department of Homeland Security regulations to issue labor certifications for H-2B workers.
4. Put Up or Shut Up: EEOC Ordered To Reveal Immigration Status or Abandon Claims – The EEOC must either reveal the immigration status of women it is representing in a harassment lawsuit or abandon recovery of monetary damages for the claimants who will not disclose their status.
5. New Publications and Items of Interest – New Publications and Items of Interest
6. Member News – Member News
7. Government Agency Links – Government Agency Links
Details:
1. India, China EB-2 Category Unavailable for Remainder of FY 2012
In May, as predicted, the India and China priority dates in the employment-based second (EB-2) green card category retrogressed dramatically, from May 1, 2010, to August 15, 2007. The EB-2 category is for people with advanced degrees or who have exceptional ability. The Department of State’s Visa Office has announced that this category is now “Unavailable” for both India and China and will remain so for the remainder of fiscal year 2012.
If an I-485 Application for Adjustment of Status was filed while the person’s priority date was current, it will remain pending until the priority date is current again. Because the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, while the priority date is unavailable.
The Visa Office includes the following information in the June Visa Bulletin:
Despite the retrogression of the China and India Employment Second preference cut-off date to August 15, 2007, demand for numbers by applicants with priority dates earlier than that date remained excessive. Such demand is primarily based on cases which had originally been filed with the U.S. Citizenship and Immigration Services (USCIS) for adjustment of status in the Employment Third preference category, and are now eligible to be upgraded to Employment Second preference status. The potential amount of such “upgrade” demand is not currently being reported, but it was evident that the continued availability of Employment Second preference numbers for countries other than China and India was being jeopardized. Therefore, it was necessary to make the China and India Employment Second preference category “Unavailable” in early April, and it will remain so for the remainder of FY 2012.
Numbers will once again be available for China and India Employment Second preference cases beginning October 1, 2012 under the FY-2013 annual numerical limitations. Every effort will be made to return the China and India Employment Second preference cut-off date to the May 1, 2010 date which had been reached in April 2012. Readers should be advised that it is impossible to accurately estimate how long that may take, but current indications are that it would definitely not occur before spring 2013.
USCIS has indicated that it will continue accepting China and India Employment Second preference I-485 filings during May, based on the originally announced May cut-off date.
JUNE BULLETIN. Contact your ABIL attorney for assistance.
2. NLRB Issues Guidance on Compliance Cases
The National Labor Relations Board (NLRB) issued guidance on May 4, 2012, to regions for investigating and litigating compliance issues under Flaum Appetizing Corp., 357 NLRB No. 162 (Dec. 30, 2011). The memo acknowledges that the Supreme Court in Hoffman Plastics Compounds, Inc. v. NLRB, 535 U.S. 137 (2002) concluded that the Immigration Reform and Control Act of 1986 (IRCA) bars the NLRB from awarding backpay to any individual who was not legally authorized to work in the United States during the backpay period. However, the NLRB noted that an employee’s work authorization status generally is irrelevant to the merits of an unfair labor practice compliant; it only becomes a triable issue at the compliance stage. Nonetheless, the NLRB memo states, a respondent “may not use the compliance phase as a means to fish for disabling employee conduct under IRCA, i.e., no legal authorization for its employees to work in the United States.”
In Flaum, the NLRB concluded that “IRCA does not require that the Board permit baseless inquiry into immigration status in every case in which reinstatement or backpay is granted.” In the compliance phase, the NLRB memo says, regions should demand a full accounting of evidence upon which a respondent intends to rely to assert that employees are ineligible for backpay under Hoffman Plastics.
The NLRB memo also notes, among other things, that before Flaum, an employer was permitted to require discriminatees to complete the appropriate portion of the I-9 employment authorization verification form and submit appropriate documentation as a condition of reinstatement. “A reinstatement offer will no longer be considered valid if it is conditioned on re-verification of employment status,” the NLRB memo states.
3. Labor Dept. Says Preliminary Injunction on H-2B Final Rule Calls Into Doubt Its Authority
On May 7, 2012, the Office of Foreign Labor Certification of the Department of Labor’s Employment and Training Administration released the following statement regarding the preliminary injunction of the H-2B final rule by the U.S. District Court for the Northern District of Florida:
On April 26, 2012, the Temporary Non-Agricultural Employment of H-2B Aliens in the United States, Final Rule, 77 FR 10038, Feb. 21, 2012 was preliminarily enjoined by the U.S. District Court for Northern District of Florida, Pensacola Division in Bayou Lawn & Landscape Services, et al. v. Hilda L. Solis, et al., 12-cv-00183-RV-CJK, and was never implemented. Therefore, for the present time employers should file their H-2B labor certification applications under the Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes, 73 FR 78020, Dec. 19, 2008. However, please be aware that this preliminary injunction necessarily calls into doubt the underlying authority of the Department of Labor to fulfill its responsibilities under the Immigration and Nationality Act and Department of Homeland Security regulations to issue the labor certifications that are a necessary predicate for the admission of H-2B workers.
4. Put Up or Shut Up: EEOC Ordered To Reveal Immigration Status or Abandon Claims
On May 7, 2012, Judge Lonny R. Suko of the U.S. District Court for the Eastern District of Washington told the Equal Employment Opportunity Commission (EEOC) that it had to either reveal the immigration status of women it is representing in a harassment lawsuit or abandon recovery of monetary damages for the claimants who will not disclose their status. The EEOC had objected on Fifth Amendment grounds, and sought a protective order. EEOC v. Evans Fruit Co., Inc., Case No. CV-10-3033 LRS (E.D. Wash.). The court noted that even if an assertion of Fifth Amendment privileges is proper, “there are consequences.” The court said “it should have been apparent to the EEOC that some of the claimants now had a choice to make: either continue to be part of the litigation and provide answers in discovery subject to the protective order, or decline to…be part of the litigation.”
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5. New Publications and Items of Interest
Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, to be released on May 31, 2012, by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
This publication provides:
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
The book will be discounted 20% for pre-orders through May 31. ORDER HERE. The discount code is ABIL20 (enter this code at checkout). International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.hahn@lexisnexis.com.
Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.
For more information or to order, visit Green Card Stories.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available HERE.
6. Member News
Laura Danielson has published several new blog entries: “Say It Ain’t So, Sheriff Joe” and “A Lot of People Are Dying to Come to the U.S.”
Ms. Danielson also wrote an article on immigration policy and reform that was published in her county bar magazine. The article also quotes Charles Kuck. It is available HERE.
Charles Kuck was quoted or mentioned in several publications, including the Atlanta Journal Constitution and here, CBS Local, and The Republic.
Robert Loughran will be speaking on perfecting EB-5 regional center petitions at an EB-5 seminar sponsored by ilw.com in Nashville, Tennessee, on June 13, 2012. In addition:
FosterQuan held a seminar, “Pasaporte al Exito: Estrategias Claves Inmigratorias de los EE. UU. Para el 2012 y en Adelante,” which focused on business opportunities and procedures for Mexican entrepreneurs looking to invest in the United States. This seminar was held in Harlingen, Texas, on February 7, 2012, and in Rio Grande City, Texas, on February 8, 2012.
FosterQuan presented at The Inter-Connect Business Expo’s “Orientación y Servicios en Nuestra Comunidad” seminar, which focused on business opportunities and procedures for foreign nationals looking to invest in the United States. This seminar was held in The Woodlands, Texas, on April 10, 2012.
FosterQuan attorneys spoke at a seminar, “McAllen’s Mexican Investors Summit,” which focused on immigration law for Mexican nationals. The seminar was held in McAllen, Texas, on May 16, 2012.
FosterQuan attorneys have been invited to speak at the 2nd Annual Select USA Seminar series, “How to Invest in the U.S.,” which will focus on business opportunities and procedures for Mexican entrepreneurs looking to invest in the United States. The seminar will be held in Mexico City on June 5, 2012, in Guadalajara on June 6, 2012, and in Monterey on June 7, 2012.
FosterQuan recently advised a major technology industry entrepreneur, partnering with the City of Houston and the Greater Houston Partnership (the largest chamber of commerce in the greater Houston metropolitan area), in the formation of a new EB-5 regional center for the Houston region. The Lone Star Regional Center will initially focus on investments in new energy technologies and hotel and leisure industry projects . FosterQuan advised the Lone Star regional center when the regulatory landscape surrounding EB-5 regional centers was in a state of continual change.
Initially filed well before the promulgation of the I-924 form, the application was nevertheless caught up in the maelstrom of USCIS requests for evidence related to I-924-specific information. Most interestingly, USCIS raised some novel issues in a Notice of Intent to Deny. USCIS argued that the project business plans for the hypothetical or sample projects included in the application lacked detail required for a business plan pursuant to Matter of Ho. USCIS further alleged that the applicant did not provide evidence that the sample projects fell within a Targeted Employment Area (TEA). Finally, USCIS challenged the North American Industry Classification System (NAICS) codes selected for the energy project.
FosterQuan’s successful response to these challenges drew a distinction between the Matter of Ho requirements for business plans for actual projects, and the requirements for a sample business plan, which in essence should provide the same level of specificity. Concerning the TEA analysis, FosterQuan’s successful response further directed USCIS to review and apply its own guidance from the Neufeld Memorandum of December 2009 and the Adjudicator’s Field Manual, which confirm that USCIS makes TEA determinations only at the time that an I-526 immigrant petition is filed – not at the time that an I-924 application for a regional center is filed.
Finally, in relation to the issues raised by NAICS codes, the USCIS analysis revealed the difficulties in selecting NAICS codes for novel industries. Through detailed background evidence, USCIS accepted the original NAICS codes because they were the most appropriate among the available industry code options.
The Lone Star Regional Center was approved by USCIS in May 2012 and should begin operations shortly.
Cyrus Mehta has co-authored a new blog entry. “Hidden Treasure: How States That Want Immigrants Can Take Advantage of Arizona v. USA.”
Mr. Mehta presented on “Employment-Based Immigration Basics” at the New York State Bar Immigration Law Update in New York City on May 8-9, 2012. For more information, see http://bit.ly/LHleNu. He also presented on “Intra-Company Transfer Visas: L-1s for Experienced Practitioners” at a Web seminar on May 1, 2012, sponsored by the American Immigration Lawyers Association.
Angelo Paparelli has published a new blog entry. “Instruct Us Again on the Immigration Rules.”
The Wolfsdorf Immigration Law Group is presenting several free webinars. The upcoming topic is Investors/Traders (E Visas), to be held Thursday, May 10, 2012. For more information or to register, see HERE.
Stephen Yale-Loehr will speak on I-829 issues at the ILW EB-5 seminar in Nashville, Tennessee, on June 13, 2012.
7. 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
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin
Visa application wait times for any post
