Headlines:
1. Obama Takes Executive Action on Immigration – Shortly after the mid-term elections, President Barack Obama initiated several executive actions on immigration.
2. Labor Dept. To Modernize PERM Recruitment and Application Requirements – DOL will review the PERM program and relevant regulations with a goal of updating them.
3. Labor Dept. Establishes Interagency Working Group on Worker Protections – The new interagency working group will identify policies and procedures that promote the consistent enforcement of federal labor, employment, and immigration laws to “protect all workers in the U.S.”
4. ABIL Global: Poland – Poland regards special economic zones as an important instrument to stimulate foreign investment. There are new investment opportunities in Polish real estate 12 years after Poland’s accession to the EU.
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. Obama Takes Executive Action on Immigration
Shortly after the mid-term elections, President Barack Obama initiated several executive actions on immigration.
As outlined in a series of Department of Homeland Security memoranda, the executive actions include, among other things:
Supporting high-skilled business and workers. The Department of Homeland Security (DHS) will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. For example, DHS notes, “because our immigration system suffers from extremely long waits for green cards, we will amend current regulations and make other administrative changes to provide needed flexibility to workers with approved employment-based green card petitions.”
Some of the actions called for in the memo include:
- U.S. Citizenship and Immigration Services (USCIS) working with the Department of State (DOS) to improve the system for determining when immigrant visas are available to applicants during the fiscal year. DOS has agreed to modify its visa bulletin system “to more simply and reliably make such determinations,” and the memo states an expectation that USCIS will revise its current regulations “to reflect and complement these proposed modifications.”
- USCIS considering “amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where [beneficiaries] seek to change jobs or employers.”
- U.S. Immigration and Customs Enforcement (ICE) developing regulations for notice and comment to expand the degree programs eligible for Optional Practical Training (OPT) and to extend the time period and use of OPT for foreign STEM (science, technology, engineering, and mathematics) students and graduates.
- USCIS issuing guidance or regulations to clarify the standard for granting a national interest waiver green card, with the aim of promoting its greater use.
- USCIS proposing a program allowing parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for national interest waivers but “who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.” The regulation will include income and resource thresholds.
- USCIS issuing a policy memorandum to provide “clear, consolidated guidance” on the meaning of “specialized knowledge” in adjudicating L-1B petitions.
- USCIS issuing a policy memorandum providing guidance on worker portability, specifically with respect to what constitutes a “same or similar” job, with a goal of removing “unnecessary restrictions” on “natural career progression.”
MEMO explaining high-skilled business and workers
Enforcement efforts, including commissioning three Joint Task Forces. Joint Task Force East, Joint Task Force West, and Joint Task Force Investigations. All three will incorporate elements of the U.S. Coast Guard, U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement, and U.S. Citizenship and Immigration Services. Joint Task Force East will be responsible for the southern maritime border and approaches. Joint Task Force West will be responsible for the southern land border and the West Coast. Joint Task Force Investigations will focus on investigations in support of the geographic Task Forces.
The overarching goals of the Southern Border and Approaches Campaign, of which the Joint Task Forces are a part, will be to enforce immigration laws and interdict individuals seeking to enter the U.S. without authorization; degrade international criminal organizations; and decrease the threat of terrorism.
MEMO explaining enforcement efforts
Ending the Secure Communities program and replacing it with the Priority Enforcement Program, and prioritizing criminal offenses for arrest, detention, and removal.
MEMO on Prosecutorial Discretion
MEMO on Secure Communities
Expanding Deferred Action for Childhood Arrivals (DACA) to encompass a broader class of children. DACA eligibility had been limited to those who were under 31 years of age on June 15, 2012, who entered the United States before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all undocumented immigrants who entered the United States before the age of 16, and not just those born after June 15, 1981. The entry date will be adjusted from June 15, 2007 to January 1, 2010. The relief (including work authorization) will now last for three years rather than two.
MEMO explaning DACA
Extending eligibility for deferred action to parents of U.S. citizens and lawful permanent residents. This new program, called Deferred Action for Parental Accountability (DAPA), will include individuals who (i) are not removal priorities under the new policy, (ii) have been in the United States at least five years, (iii) have children who on the date of the announcement (November 20, 2014) were U.S. citizens or lawful permanent residents, and (iv) present no other factors that would make a grant of deferred action inappropriate. These individuals will be assessed for eligibility for deferred action on a case-by-case basis. They may then apply for work authorization, provided they pay a fee. Each individual will undergo a background check of relevant national security and criminal databases, including DHS and FBI databases.
MEMO explaining DAPA
Expanding I-601A provisional waivers to spouses and children of lawful permanent residents. The provisional waiver program DHS announced in January 2013 for undocumented spouses and children of U.S. citizens will be expanded to include the spouses and children of lawful permanent residents, as well as the adult children of U.S. citizens and lawful permanent residents. At the same time, the administration will further clarify the “extreme hardship” standard that must be met to obtain the waiver.
MEMO explaining I-601A waivers
Revising parole rules. DHS will begin rulemaking to identify the conditions under which “talented entrepreneurs” should be paroled into the United States, on the ground that their entry would yield a “significant public economic benefit.” DHS will also support the military and its recruitment efforts by working with the Department of Defense to address the availability of parole-in-place and deferred action to spouses, parents, and children of U.S. citizens or lawful permanent residents who seek to enlist in the U.S. Armed Forces. DHS will also issue guidance to clarify that when anyone is given advance parole to leave the United States, including those who obtain deferred action, they will not be considered to have departed. Undocumented aliens generally trigger a 3- or 10-year bar to returning to the United States when they depart.
MEMO explaining parole for entrepreneurs
MEMO explaning parole for parole-in-place and deferred action
MEMO explaning advance parole
President Obama also issued a memorandum directing the Secretaries of State and Homeland Security, in consultation with other federal agencies, to develop recommendations for improving the U.S. visa system. The recommendations will be developed in consultation with “business people, labor leaders, universities, and other stakeholders.” The recommendations will be geared toward streamlining and improving the legal immigration system—including immigrant and non-immigrant visa processing—”with a focus on reforms that reduce government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system.”
In consultation with stakeholders with relevant expertise in immigration law, they will also develop recommendations “to ensure that administrative policies, practices, and systems use all of the immigrant visa numbers that the Congress provides for and intends to be issued, consistent with demand.” In consultation with technology experts inside and outside the government, they will develop recommendations “for modernizing the information technology infrastructure underlying the visa processing system, with a goal of reducing redundant systems, improving the experience of applicants, and enabling better public and congressional oversight of the system.”
President Obama also announced that he is establishing a White House Task Force on New Americans, an interagency effort “to identify and support state and local efforts at integration that are working and to consider how to expand and replicate successful models.” The Task Force, which will engage with community, business, and faith leaders, as well as state and local elected officials, “will help determine additional steps the federal government can take to ensure its programs and policies are serving diverse communities that include new Americans.” Among other things, the Task Force will submit an “Integration Plan” to President Obama, which will include an assessment of the members’ agencies with respect to integration efforts, and recommendations. The Task Force will also identify and disseminate best practices at the state and local level, collect and disseminate data on immigrant integration, and provide technical assistance.
President Obama has said he would reverse the executive actions if Congress passes a comprehensive immigration legislation that he can sign. Republicans countered that they would fight whatever changes the President orders “tooth and nail,” according to House Speaker John Boehner (R-Ohio). He said all options were on the table. Senate Majority Leader Mitch McConnell (R-Ky.) said that unilateral executive actions on immigration are like “waving a red flag in front of a bull.”
A letter transmitted by 136 law professors to the White House on November 20, 2014, and updated on November 25, supports President Obama’s legal authority to expand the DACA program and to establish the Deferred Action for Parental Accountability (DAPA) program.
President Obama also issued an “immigration blueprint,” outlined in “Building a 21st Century Immigration System,” which includes additional proposals.
The memoranda summarized above, along with the White House address announcing the actions and related USCIS and ICE info.
ADDITIONAL MEMORANDA on modernizing and streamlining the U.S. visa system
ADDITIONAL MEMORANDA on establishing the White House Task Force on New Americans
2. Labor Dept. To Modernize PERM Recruitment and Application Requirements
The Department of Labor (DOL) has released a fact sheet announcing that it will review the PERM labor certification program and relevant regulations with a goal of updating them. DOL noted that it has received ongoing feedback that the existing regulatory requirements governing the PERM recruitment process frequently do not align with worker or industry needs and practices.
DOL recently marked the 10th anniversary of the PERM regulations, which govern the labor certification process for the permanent employment of immigrant foreign workers and establish responsibilities of participating employers. The DOL said it has not comprehensively examined and modified the permanent labor certification requirements and process since their inception. This past fiscal year, employers submitted over 70,000 PERM applications requesting foreign workers. The majority of those job openings were for professional occupations in the information technology and science fields.
As part of the new review, DOL will seek input on the current PERM regulations, including how they can be modernized to be more responsive to changes in the national workforce. Specifically, DOL will seek input on the following:
- Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
- Methods and practices designed to modernize U.S. worker recruitment requirements;
- Processes to clarify employer obligations to ensure that PERM positions are fully open to U.S. workers;
- Ranges of case processing time frames and possibilities for premium processing; and
- Application submission and review processes and the feasibility of efficiently addressing nonmaterial errors.
DOL’s Employment and Training Administration may also examine other aspects of the existing PERM regulations to further align the program design with the objectives of the U.S. immigration system and the needs of workers and employers, and to enhance the integrity of the labor certification process.
3. Labor Dept. Establishes Interagency Working Group on Worker Protections
The Department of Labor recently announced the creation of an interagency working group to identify policies and procedures that promote the consistent enforcement of federal labor, employment, and immigration laws to “protect all workers in the U.S.” The announcement notes that federal agencies responsible for worker protections seek to protect all workers from exploitation and workers’ rights violations, regardless of immigration status. “Many workers, however, are deterred or prevented from asserting workplace rights and protections. In some cases, employers may exploit immigration status to deter employees from asserting their rights. In other cases, the protections available to workers are unclear,” the announcement notes.
The working group will comprise federal immigration enforcement agencies and federal agencies responsible for worker protections, including the Departments of Labor, Homeland Security, and Justice; the Equal Employment Opportunity Commission; and the National Labor Relations Board.
The working group will seek to:
- Ensure that agencies’ immigration enforcement and worker protection policies promote workers’ cooperation with labor and employment law enforcement authorities without fear of retaliation;
- Ensure that federal enforcement authorities are not used by parties seeking to undermine worker protection laws by enmeshing immigration authorities in labor disputes; and,
- Ensure the consistent enforcement of federal labor, employment, and immigration laws.
To achieve these objectives the working group will:
- Develop policies and procedures to ensure consistent enforcement of labor, employment, and immigration laws;
- Develop consistent standards and procedures for immigration agencies to contact labor agencies when they encounter a potential labor dispute within the meaning of the Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites, executed on December 7, 2011;
- Provide greater clarity to workers, worker representatives, advocates, and employers regarding processes and procedures on the intersection between immigration law enforcement and labor and employment law enforcement;
- Strengthen processes for staying the removal of, and providing temporary work authorization for, undocumented workers asserting workplace claims and for cases in which a workplace investigation or proceeding is ongoing; and
- Provide stakeholders open and transparent modes of communication with enforcement authorities.
The working group “will provide opportunities for communication with external stakeholders, including workers, worker representatives, advocates, and employers as appropriate.”
4. ABIL Global: Poland
Poland regards special economic zones as an important instrument to stimulate foreign investment. There are new investment opportunities in Polish real estate 12 years after Poland’s accession to the EU.
Poland can be considered an alternative for corporate immigration as compared with other economies of East-Central Europe. Two factors provide the basis for the increased activity of foreign capital in Poland: the development of special economic zones and the lifting of limitations on purchasing real estate by foreigners in Poland.
As with other countries (e.g., China), Poland regards special economic zones as an important instrument for attracting foreign investors. Special economic zones are designated industrial areas prepared for investment for foreign entities. In return for allocating production and operation of the company in Poland, the investor receives a special, beneficial legal status with respect to tax obligations. The primary benefit of investing in the special economic zones is property tax exemption and, above all, income tax exemption, the scale of which depends on the volume of investment. Investments in the special economic zones in Poland require a permit issued in administrative proceedings. According to the latest data, there are more than 7 thousand hectares of land waiting in Poland for foreign capital in the special economic zones.
In the near future, new rules will come into force on state aid granted to entrepreneurs operating under permits to conduct business activity in the special economic zones. The rules will facilitate provisions regulating the proportion of public funds in the investments and the method of accounting for the investments.
The attractiveness of the local market for corporate immigration depends to a large extent on the legal status of the commercial real estate market. In this respect, the current status of the Polish real estate sector has been presented in the annual report of the Polish government devoted to the acquisition of real estate by foreigners (individuals and corporate entities). The report for 2014 highlights the activity of German, Dutch, and Ukrainian capital in Poland. The reports, prepared annually by the Minister of Internal Affairs and Administration, extensively and accurately presents international trading in Polish real estate.
According to the report, in 2013, foreigners were granted a total of 252 permits for the acquisition of land property with a total area of 697.15 hectares. The vast majority of applications had been approved. In Poland, the acquisition of real estate by foreigners requires, in principle, a permit from the Minister of Internal Affairs and Administration. The source of legal restrictions is the Act on the acquisition of real estate by foreigners as of March 24, 1920. The relevant permit is also necessary for the purchase or acquisition by foreigners of shares in companies that are owners or perpetual users of real estate. By May 1, 2016, the permit also will be required for the purchase of forest and agricultural real estate by European Union (EU)/European Economic Area entities. Such status follows from the transitional provisions of the Polish accession to the EU.
5. New Publications and Items of Interest
The 2014 edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
The 2014 edition adds a chapter on Singapore. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Russia, South Africa, Spain, Switzerland, Turkey, the United Kingdom, and the United States.
Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.”
Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.”
Charles Gould, Director-General of the International Co-operative Alliance, said the guide is “an invaluable resource for both legal practitioners and business professionals. The country-specific chapters are comprehensive and answer the vast majority of questions that arise in immigration practice. Its clear and easy-to-follow structure and format make it the one volume to keep close at hand.”
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.
The list price is $299, but discounts are available. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584; or go to the Lexis/Nexis website.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. RECENT ABIL MEMBER BLOG
6. Member News
Klasko Immigration Law Partners, LLP recently announced their ranking as a Tier 1 immigration law firm by U.S. News and World Report and Best Lawyers. The firm received a Tier 1 ranking nationally and in Philadelphia and New York City.
Charles Kuck was quoted in the Global Delivery Report, in “What the U.S. Election Results Mean for the Tech Industry Visa Problem.” He noted, “One thing is clear: the IT industry believes that U.S. schools are not turning out enough qualified individuals. If they were, they would not be using foreign nationals, who cost them far more to hire, given filing and attorney fees, and mandatory wage amounts.
Cyrus Mehta was Discussion Leader of “Working Around the H-1B Debacle” on November 14, 2014, at American Immigration Lawyers Association’s Mexico District Chapter Conference, Buenos Aires, Argentina.
Mr. Mehta has co-authored a new blog entry. “The Fate of Executive Action on Immigration After the Midterm Elections”
Mr. Mehta will be presenting on “Representing Children in Immigration Proceedings and the Immigration Executive Orders of President Obama” on December 2, 2014, at a CLE of the Office of the Chief Counsel to the Departmental Disciplinary Committee, First Department, New York.
Mr. Mehta was quoted in an article on Forbes.com, “Will President Obama Help Legal Immigrants Too?”
Mr. Mehta was on the “Takeaway” public radio show with John Hockenberry broadcast nationally on November 20, 2014, to discuss President Obama’s executive actions on immigration.
Mr. Mehta has published a summary of President Obama’s recent immigration executive actions.
Angelo Paparelli spoke on KNX 1070 (CBS radio affiliate in Los Angeles) in a one-hour report on President Obama’s executive actions on immigration on November 24, 2014, at 10 am PST. It featured Mr. Paparelli and an opponent of immigration, with extensive audience call-in.
Mr. Paparelli was quoted on Inc.com, in “If You Have Employees, Obama’s Immigration Plans Will Most Likely Affect You.” “Employers should be alert to the possibility that a new population of workers who may have been silent at the worksite may speak up, and employers will want to generally review their employment practices,” he noted. Mr. Paparelli counseled proactively reviewing hiring and screening procedures and considering a “voluntary audit” of I-9 forms.
Stephen Yale-Loehr was quoted on Time.com regarding the potential political fallout of President Obama’s announcement on executive actions to reform the U.S. immigration system. Mr. Yale-Loehr noted that “Republicans will argue that even the smallest executive immigration actions subvert Congress’ power.”
Mr. Yale-Loehr was quoted in the New York Times in “Obama’s Executive Order on Immigration Is Unlikely to Include Health Benefits,” published on November 19, 2014. “Just as the president has broad discretion to decide whether to allow undocumented individuals to get a temporary reprieve from deportation, he also has broad authority to decide whether to grant them work authorization and health benefits. In this case, it appears he is willing to grant the former but not the latter.”
Mr. Yale-Loehr was also quoted on President Obama’s executive actions on immigration in the Huffington Post and in the Houston Chronicle.
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
