Headlines:
1. USCIS Final Rule Allows Provisional Unlawful Presence Waivers To Reduce Separations From Immediate Relatives – The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they leave the United States to attend immigrant visa interviews in their countries of origin.
2. USCIS Revises Guidance on Adjudication of Late Jointly Filed I-751 Petitions for Conditional Permanent Residents – The new guidance supersedes existing guidance for the processing of late jointly filed I-751 petitions submitted without explanation for the late filing.
3. U.S. Embassies, Consulates in China Will Transition to New Visa Collection System in March – The U.S. embassy strongly advises all visa applicants to use all current CITIC fee receipts before they expire on March 14, 2013.
4. DHS Announces TPS Redesignation, 18-Month Extension for Sudan and South Sudan – Those who already have TPS must re-register during the 60-day re-registration period that began on January 9, 2013, and runs through March 11, 2013. Those who do not have TPS may apply during a six-month registration period that began on January 9, 2013, and runs through July 8, 2013.
5. DOL Announces New H-2A Adverse Effect Wage Rates for Each State, Establishes New Prevailing Wage Rates for Certain H-2A Occupations – The Department of Labor said it will publish a separate Federal Register Notice to announce the allowable charges for 2013 that employers seeking H-2A workers may charge for meals as well as the maximum travel subsistence reimbursement that a worker can claim.
6. New Publications and Items of Interest – New Publications and Items of Interest
7. Member News – Member News
8. Government Agency Links – Government Agency Links
Details:
1. USCIS Final Rule Allows Provisional Unlawful Presence Waivers To Reduce Separations From Immediate Relatives
U.S. Citizenship and Immigration Services has published a final rule that reduces the time U.S. citizens are separated from their immediate relatives (defined as including a spouse, children, and parents) who are in the process of obtaining visas to become lawful permanent residents of the United States, under certain circumstances. The final rule establishes a process that allows certain individuals to apply for a provisional unlawful presence waiver before they leave the United States to attend immigrant visa interviews in their countries of origin. The process takes effect March 4, 2013.
To obtain a provisional unlawful presence waiver, the applicant must be an immediate relative of a U.S. citizen, inadmissible only on account of unlawful presence, and demonstrate that denial of the waiver would result in extreme hardship to his or her U.S. citizen spouse or parent. USCIS will publish a new form, Form I-601A, Application for a Provisional Unlawful Presence Waiver, for individuals to use when applying for a provisional unlawful presence waiver under the new process.
Under the new provisional waiver process, immediate relatives must still depart the United States for the consular immigrant visa process; however, they can apply for a provisional waiver before they depart for their immigrant visa interview abroad. Individuals who file the Form I-601A must notify the Department of State’s National Visa Center that they are or will be seeking a provisional waiver from USCIS.
“This final rule facilitates the legal immigration process and reduces the amount of time that U.S. citizens are separated from their immediate relatives who are in the process of obtaining an immigrant visa,” said Secretary of Homeland Security Janet Napolitano in an announcement on January 2, 2013. USCIS Director Alejandro Mayorkas said, “The law is designed to avoid extreme hardship to U.S. citizens, which is precisely what this rule achieves. The change will have a significant impact on American families by greatly reducing the time family members are separated from those they rely upon.”
USCIS said it received more than 4,000 comments in response to the April 2, 2012, proposed rule and considered all of them in preparing the final rule.
Under current law, immediate relatives of U.S. citizens who are not eligible to adjust status in the United States to become lawful permanent residents must leave the country and obtain an immigrant visa abroad. Individuals who have accrued more than six months of unlawful presence while in the United States must obtain a waiver to overcome the unlawful presence inadmissibility bar before they can return to the United States after departing to obtain an immigrant visa. Under the existing waiver process, which remains available to those who do not qualify for the new process, immediate relatives cannot file a waiver application until after they have appeared for an immigrant visa interview abroad and the Department of State has determined that they are inadmissible.
USCIS said more information about the filing process will be made available in the coming weeks. ANNOUNCEMENT
FINAL RULE, published on January 3, 2013
SECRETARY NAPOLITANO’S STATEMENT
2. USCIS Revises Guidance on Adjudication of Late Jointly Filed I-751 Petitions for Conditional Permanent Residents
A new U.S. Citizenship and Immigration Services (USCIS) policy memorandum revises and clarifies guidance issued on October 9, 2009, relating to late filing of a joint Form I-751, Petition to Remove the Conditions of Residence, and authorizes immigration services officers (ISOs) to issue Requests for Evidence (RFEs) for untimely filed joint I-751s. The new guidance supersedes existing guidance for the processing of late jointly filed I-751 petitions submitted without explanation for the late filing.
USCIS noted that the conditional permanent resident (CPR) and the petitioning spouse must jointly file an I-751 during the 90-day period immediately preceding the second anniversary of the date the CPR acquired conditional resident status. USCIS may accept I-751 joint petitions filed after this 90-day period if the CPR establishes good cause and extenuating circumstances for the failure to timely file.
Under the new guidance, when an ISO adjudicates a late jointly filed I-751 petition, the ISO will check for a written explanation of the late filing. If the I-751 petition is submitted with an explanation for the late filing, the ISO will review the explanation for the untimely filing in relation to the length of time the application was untimely filed, along with any corroborating evidence that was submitted, to determine if the CPR established good cause for the late filing. If the CPR did not include a written explanation for the late filing, the ISO will issue an RFE, requesting a reasonable explanation for the late filing and corroborating evidence. If the ISO receives a response to the RFE, the ISO will evaluate the explanation, along with any corroborating evidence that was submitted, to determine if the CPR established good cause for the late filing. Corroborating evidence is not necessary if the explanation is acceptable on its face. After receiving a response to the RFE, the ISO may transfer the I-751 file for an interview if the documentary evidence leads to an inconclusive result and the determination of good cause for the late filing would benefit from a live interview. If the ISO does not receive a response to the RFE, the ISO will deny the I-751 for failure to comply with the filing requirements.
3. U.S. Embassies, Consulates in China Will Transition to New Visa Collection System in March
The U.S. embassy and consulates general in China will transition to a “new and improved” visa fee collection system for Chinese applicants in mid-March 2013. As a result of this new system, the U.S. visa fee receipts that applicants currently purchase from select CITIC Bank branches will be phased out and will not be valid after March 14, 2013. There will be no fee increase associated with these changes. The U.S. embassy strongly advises all visa applicants to use all current CITIC fee receipts before they expire on March 14, 2013. “After the expiration date, we will be unable to accept receipts issued before March 14 and refunds for expired receipts will not be available. Visa applicants who plan to apply close to or after March 14 should wait to pay their visa fees until after this date.” The U.S. embassy in Beijing said that specific details on this new way for applicants to pay their visa fees will be announced closer to the transition date.
4. DHS Announces TPS Redesignation, 18-Month Extension for Sudan and South Sudan
The Department of Homeland Security has redesignated Sudan and South Sudan for temporary protected status (TPS) and extended their existing TPS designations from May 3, 2013, through November 2, 2014. Those who already have TPS must re-register during the 60-day re-registration period that began on January 9, 2013, and runs through March 11, 2013. Those who do not have TPS may apply during a six-month registration period that began on January 9, 2013, and runs through July 8, 2013.
FEDERAL REGISTER NOTICE FOR SUDAN
FEDERAL REGISTER NOTICE FOR SOUTH SUDAN
5. DOL Announces New H-2A Adverse Effect Wage Rates for Each State, Establishes New Prevailing Wage Rates for Certain H-2A Occupations
The Department of Labor (DOL) has announced new adverse effect wage rates (AEWRs) for each state based on the Farm Labor Survey conducted by the U.S. Department of Agriculture. The AEWRs are the minimum hourly wage rates the DOL has determined must be offered and paid by employers to H-2A workers and workers in corresponding employment for a particular agricultural job and area so that the wages of similarly employed U.S. workers will not be adversely affected.
The DOL said it will publish a separate Federal Register Notice to announce the allowable charges for 2013 that employers seeking H-2A workers may charge for meals as well as the maximum travel subsistence reimbursement that a worker can claim. Until that Federal Register notice is published, the agency said that employers should continue to use the current meal charges and maximum travel subsistence.
FEDERAL REGISTER NOTICE ANNOUNCING THE NEW AEWRs
6. New Publications and Items of Interest
New centralized USCIS policy manual. U.S. Citizenship and Immigration Services (USCIS) has begun the agency’s transition toward an online, centralized manual of immigration policies by releasing the first volume of the new USCIS Policy Manual — “Citizenship and Naturalization.” The release on January 7, 2013, follows an agency-wide review of USCIS policies that incorporates feedback from agency employees, stakeholders, and others. USCIS said it will begin implementing the policies outlined in the Citizenship and Naturalization volume on January 22, 2013.
The complete USCIS Policy Manual will comprise several volumes pertaining to the different areas of immigration benefits the agency administers, including citizenship and naturalization, protection and parole, adjustment of status, admissibility, refugees and asylum, waivers, and travel and employment. The new Policy Manual will replace USCIS’ current Adjudicators Field Manual and the current USCIS Immigration Policy Memoranda Web site.
In preparation for this transition to a centralized online policy manual, USCIS said it undertook an extensive review of all adjudication and customer service policies, including a survey of members of the public and the USCIS workforce. USCIS received approximately 8,000 survey responses regarding the agency’s policy and operational guidance, which informed the development and publication sequence of Policy Manual volumes. USCIS said it has trained staff affected by the release of the Citizenship and Naturalization volume to ensure familiarity with the new online tool and its content.
As content becomes available for each volume, USCIS will notify the public and invite comment on new or substantially changed policies. Public engagement opportunities will be announced on USCIS’s Web site.
GAO report on CBP efforts to mitigate risk of employee corruption and misconduct. The U.S. Government Accountability Office (GAO) has published “Additional Actions Needed to Strengthen CBP Efforts to Mitigate Risk of Employee Corruption and Misconduct.” The new report notes that U.S. Customs and Border Protection (CBP) data indicate that arrests of CBP employees for corruption-related activities since fiscal year (FY) 2005 account for less than 1 percent of CBP’s entire workforce per fiscal year. The majority of arrests of CBP employees were related to misconduct. Among other incidents from FYs 2005 through 2012, a total of 144 current or former CBP employees were arrested or indicted for corruption-related activities such as the smuggling of aliens or drugs, of whom 125 were convicted as of October 2012. The majority of allegations against CBP employees since fiscal year 2006 occurred at locations along the southwest border. The report examines (1) data on arrests of and allegations against CBP employees for corruption or misconduct, (2) CBP’s implementation of integrity-related controls, and (3) CBP’s strategy for its integrity programs. GAO analyzed arrest and allegation data since FYs 2005 and 2006, respectively, reviewed integrity-related policies and procedures, and interviewed CBP officials in headquarters and at four locations along the southwest border selected for geographic location, among other factors.
GAO recommends that CBP, among other things, track and maintain data on sources of information used to determine which applicants are unsuitable for hire, assess the feasibility of expanding the polygraph program to incumbent officers and agents, consistently conduct quality assurance reviews, and set timelines for completing and implementing a comprehensive integrity strategy. The Department of Homeland Security concurred and reported taking steps to address the recommendations.
Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, recently released 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.
- 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.
Order HERE. 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.
Green Card Stories has won six national awards. It was named a Nautilus book award silver medal winner, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012 and was a finalist for the International Photography Awards. The writer, Saundra Amrhein, was nominated as a finalist on the short list for the 2011 Santa Fe Writers Project Literary Awards. Green Card Stories is also featured on National Public Radio’s photo blog.
For more information, e-mail Lauren Anderson at lauren@greencardstories.com or see the Green Card Stories website.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL blog.
7. Member News
Charles Kuck has published a new blog entry. “The New Provisional Waiver – What It Means and Who Can Use It”
Charles Kuck recently spoke about provisional waivers on Univision. The video is available in Spanish.
Cyrus Mehta has published a new blog entry. “The Irrelevancy of Anti-Immigrant Movements”
Cyrus Mehta will participate in a panel discussion on immigration policy and entrepreneurship at Brooklyn Law School on February 13, 2013, at 7 p.m. The panel discussion will be hosted by the Brooklyn Law Incubator and Policy Clinic (BLIP) and New York Legal Hackers. Topics include how immigration can promote entrepreneurship and economic growth, and how federal immigration policy affects New York’s thriving startup scene, which is at the intersection of law, technology, and business. RSVP. For more information, visit http://Blipclinic.org or email alexander.osullivan@brooklaw.edu.
Angelo Paparelli has published a new blog entry. “House GOP Says Immigrant Suffering Hurts Less Than Citizen Suffering”
8. 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
