Headlines:
1. Court Blocks Expanded DACA, DAPA; Obama Administration Appeals – The blocked programs include an expansion of Deferred Action for Childhood Arrivals, which had been set to start in February, and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which was scheduled to begin in May.
2. DHS Extends Eligibility for Work Authorization To Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking LPR Status – Starting May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants may apply for work authorization. Over 100,000 spouses may benefit from this change.
3. Federal Jury Awards $14 Million To Five Trafficked Indian Guest Workers – In the first of a series of cases involving several hundred clients, a federal jury awarded five Indian guest workers $14 million in compensatory and punitive damages in a labor trafficking scheme.
4. Labor Dept. Publishes 2015 Allowable Charges for Agricultural Workers’ Meals and Travel Reimbursements – The notice discusses requirements that the employer assume responsibility for certain costs associated with H-2A workers’ meals, travel, and lodging.
5. ABIL Pro Bono: Cyrus Mehta – ABIL Pro Bono: Cyrus Mehta
6. ABIL Global: Belgium – ABIL Global: Belgium
7. New Publications and Items of Interest – New Publications and Items of Interest
8. ABIL Member/Firm News – ABIL Member/Firm News
9. Government Agency Links – Government Agency Links
Details:
1. Court Blocks Expanded DACA, DAPA; Obama Administration Appeals
On February 23, 2015, the Department of Justice (DOJ) filed paperwork to seek a stay of a federal district court decision to block temporarily some of President Obama’s latest executive actions on immigration. That decision was in response to a lawsuit by 26 states. The blocked programs include an expansion of Deferred Action for Childhood Arrivals (DACA), which had been set to start in February, and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), which was scheduled to begin in May.
U.S. District Judge Andrew Hanen of the Federal District Court for the Southern District of Texas, in Brownsville, ruled in favor of blocking the programs on February 16. Judge Hanen said the programs would impose major burdens on states and that the Obama administration exceeded its authority in changing federal rules.
The temporary injunction does not block the existing DACA program, only the expansion announced in November 2014. Individuals may continue to request initial grants or renewals of DACA under the guidelines established in 2012, Secretary of Homeland Security Jeh Johnson stated. He also noted that other actions announced in November 2014 were not affected by the ruling, including prioritizing enforcement efforts.
Secretary Johnson issued a statement on February 17 saying that he “strongly disagree[d]” with the District Court’s temporary injunction blocking the programs, but that his agency would not begin accepting requests for expanded DACA on February 18 as originally planned, and would suspend plans to accept DAPA requests until further notice. ” The Department of Justice, legal scholars, immigration experts and even other courts have said that our actions are well within our legal authority. Our actions will also benefit the economy and promote law enforcement. We fully expect to ultimately prevail in the courts, and we will be prepared to implement DAPA and expanded DACA once we do,” he said.
Meanwhile, President Obama fielded immigration questions at a “town hall”-style meeting on February 25, 2015, conducted by MSNBC and Telemundo. Noting that the Senate had passed comprehensive immigration reform in 2013 but that House Republicans refused to bring the bill to the floor for a vote, he said he had decided to use his executive authority to “try to make sure that we are prioritizing our immigration system a lot smarter than we’ve been doing.” He stressed the importance of voting to change related laws. He also noted that he would veto legislation intended to eliminate his executive actions.
OBAMA ADMINISTRATION’S STATEMENT ON TEXAS V. UNITED STATES
INFORMATION ON RECENT EXECUTIVE ACTIONS ON IMMIGRATION
2. DHS Extends Eligibility for Work Authorization To Certain H-4 Dependent Spouses of H-1B Nonimmigrants Seeking LPR Status
U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced on February 24, 2015, that effective May 26, 2015, the Department of Homeland Security (DHS) is extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.
Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:
- Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
- Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.
Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.
USCIS said it expects this change to “reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society.” As such, USCIS noted, the change “should reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them.” The agency noted that the change “should also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation.” The rule also “will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers,” USCIS said.
USCIS estimates that the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, “and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date,” USCIS said.
3. Federal Jury Awards $14 Million To Five Trafficked Indian Guest Workers
In the first of a series of cases spearheaded by the Southern Poverty Law Center (SPLC) involving several hundred clients, a federal jury awarded five Indian guest workers $14 million in compensatory and punitive damages in a labor trafficking scheme. The cases were divided into five workers per case after a judge did not grant class action status. The SPLC is coordinating a legal collaboration bringing together almost a dozen of law firms and civil rights organizations to represent the workers on a pro bono basis, in what the organization is calling “one of the largest labor trafficking cases in U.S. history.”
The workers had each paid recruiters and a lawyer for Signal International, a Gulf Coast marine services company, $10,000 to $20,000 or more to come to the United States on H-2B temporary worker visas after they were promised good jobs, green cards, and eventual permanent residence for themselves and their families. When the workers arrived at Signal shipyards in Pascagoula, Mississippi, they did not receive what they were promised and were forced to pay $1,050 per month to live in isolated, guarded labor camps. The workers, who were born in India, could not have obtained the promised green cards under the backlogged employment-based third preference within the time frame of the H-2B visas. The green card strategy was also incompatible with the temporary H-2B visa. As many as 24 men shared a space the size of a double-wide trailer, SPLC reported. Only Signal’s Indian workers were required to live in the company housing. When some tried to find their own housing, they were told they would still be charged the housing fee, to be deducted from their pay. Company employees searched the worker’s belongings and threatened those who complained with deportation. Many of the men in this series of cases had sold property or gone deeply into debt to come to the United States, and their families were at risk as a result.
SPLC’s co-counsel in this case were Crowell & Moring, LLP; the American Civil Liberties Union; the Asian American Legal Defense and Education Fund; Sahn Ward Coschignano & Baker; and the Louisiana Justice Institute. Alliance of Business Immigration Lawyers (ABIL) member Cyrus Mehta served as an expert witness for the plaintiffs. The immigration group at Fredrikson & Byron, another ABIL member law firm, is contributing its time pro bono to represent other Signal employees in a similar lawsuit.
ADDITIONAL DETAILS OF THE CASE
4. Labor Dept. Publishes 2015 Allowable Charges for Agricultural Workers’ Meals and Travel Reimbursements
On February 23, 2015, the Department of Labor (DOL) published allowable charges for H-2A agricultural workers’ meals and travel subsistence reimbursement, including lodging.
DOL provides the methodology for determining the maximum amounts that H-2A agricultural employers may charge their U.S. and foreign workers for providing them with three meals per day during employment. This methodology provides for annual adjustments of the previous year’s maximum allowable charge based upon updated Consumer Price Index (CPI) data. The maximum charge is adjusted by the same percentage as the 12-month percent change in the CPI for all Urban Consumers for Food (CPI-U for Food). The Office of Foreign Labor Certification’s Certifying Officer may also permit an employer to charge workers a higher amount for providing them with three meals a day, if the higher amount is justified and sufficiently documented by the employer.
DOL has determined that the percentage change between December 2013 and December 2014 for the CPI-U for Food was 2.4 percent. Accordingly, the maximum an employer is allowed to charge is $11.86 per day, unless the OFLC Certifying Officer approves a higher charge for a specific employer.
The notice also discusses the requirement that the employer assume responsibility for reasonable costs associated with the worker’s travel, including transportation, food, and, in those instances where it is necessary, lodging.
5. ABIL Pro Bono: Cyrus Mehta
U.S. Citizenship and Immigration Services (USCIS)’ Administrative Appeals Office (AAO) recently sustained an appeal of an I-601 hardship waiver denial. The applicant, a native and citizen of Côte d’Ivoire, was found to be inadmissible to the United States for procuring admission through fraud or misrepresentation. She is the beneficiary of an approved green card petition based on her marriage to a U.S. citizen and sought a waiver of inadmissibility to remain in the United States with her spouse and children. The District Director found that the applicant failed to establish that her qualifying relative would experience extreme hardship as a consequence of her inadmissibility and denied the Application for Waiver of Grounds of Inadmissibility (Form I-601).
On appeal, the applicant contended that USCIS erred in concluding that she had not proven extreme hardship. Among other things, she noted that she had fled Côte d’Ivoire due to civil war and ethnic conflict and used an assumed name with a genuine passport to flee and obtain a B-1 visa to enter the United States. She also submitted medical documentation certifying that she was subjected to female genital mutilation (FGM).
The applicant and her spouse expressed fears that if she were to be required to return to Cote d’Ivoire, she could suffer retribution because of her ethnicity and because she opposes FGM, and her daughter could be forced to undergo FGM also. A psychological evaluation observed that the spouse was in “the severe range of depression and anxiety.” The AAP found that the record established that the applicant’s spouse would suffer extreme hardship as a consequence of being separated from the applicant and having sole care of the children if they remained in the United States, and due to his length of residence in the United States. The spouse had received asylum in 2000 after having escaped from Côte d’Ivoire, making his possible return impractical and possibly dangerous. Although the applicant’s immigration violations were serious, the AAO found that the record established that the positive factors outweighed the negative factors and a favorable exercise of discretion was warranted.
Alliance of Business Immigration Lawyers member Cyrus Mehta, counsel for the applicant, noted: “What is interesting about this case is that many of the compelling hardship arguments that won the day were derived from the applicant’s asylum claim based on FGM, which she did not pursue after removal hearings were terminated based on her marriage to a U.S. citizen spouse.” Mr. Mehta handled this matter on a pro bono basis.
6. ABIL Global: Belgium
Several developments have been announced.
2015 salary thresholds and requirements. Belgium has established 2015 salary thresholds for fast-track work permits B and the European Union (EU) Blue Card. One of the requirements for some Belgian fast-track work permits B and for the Blue Card is a salary threshold: the annual gross remuneration must exceed an amount that is adjusted on a yearly basis. Work permits are processed by the Belgian Regions: Flanders, Brussels, and Wallonia.
The new salary thresholds effective January 1, 2015, are:
- for highly skilled work permits: €39,802 in all 3 Regions (€39,422 for 2014);
- for executive level work permits: €66,406 in Flanders and €66,405 in Brussels and Wallonia (€65,771 for 2014);
- for Blue Cards: €51,466 in all three Regions (€50,974 for 2014).
Wallonia and Brussels have adopted legislation confirming that the salary must be paid in exchange for labor, and that the salary amount must be certain/fixed before the start of the employment in Belgium. Flanders applies the same rule.
The ministries issue a fast-track work permit B for highly skilled labor only if it is clear that the employee’s salary will exceed the threshold. The ministries take into account only amounts that will definitely be paid. A discretionary bonus cannot be considered when processing a work permit application.
Mandatory fee for some residence requests. The Belgian federal government has introduced a mandatory “contribution to the administrative costs” (mostly referred to in the press as a “foreigners’ tax”) with regard to some requests for residence authorization by foreigners. The government said this measure is in response to the continuing increase in the number of such applications and the resulting workload.
The federal government agreed to this measure on November 27, 2014. A government bill, also including several other measures, was filed in the Belgian Parliament on November 28, 2014, and the law was approved on December 19, 2014. Before the fee can become effective, it must be implemented by means of a Royal Decree. The fee will probably amount to €215 for work permit holders and €160 for family members.
Most foreigners will need to pay the fixed amount to file an application for residence authorization, either in Belgium or abroad through a Belgian embassy or consulate. If the fee is not paid, the application will be considered inadmissible. The fee will be paid by, among others, work permit holders and their family members; students; some researchers; and Blue Card applicants.
Members of the European Economic Area, Swiss citizens and their family members, asylum seekers and recognized refugees, victims of human trafficking, and unaccompanied minors will be exempt from the new fee.
7. New Publications and Items of Interest
The latest 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 latest 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
8. ABIL Member/Firm News
Mark Ivener has co-authored an e-book, EB-5 Visas: International Investors & U.S. Taxes, available from Amazon.
H. Ronald Klasko was quoted in Voice of America News in a report on the EB-5 immigrant investor program. Mr. Klasko said the EB-5 program was less likely to bring terrorists or criminals into the United States than any other immigration program. “There are about seven or eight different levels of review within [U.S.] Citizenship and Immigration Services, within the Department of Homeland Security and within the U.S. Department of State that EB-5 investors have to go through,” he noted.
Charles Kuck was quoted or mentioned in recent articles on the federal court order temporarily blocking some of President Obama’s executive actions. The articles are available at Global Atlanta, Atlanta Journal Constitution and Epoch Times.
Mr. Kuck was included in an ad that aired on the Daytona 500 jumbotron. In the ad, he says, “People come here for opportunity. But if we continue to have immigration laws that take that opportunity away from people rather than giving it to them, we’re no longer going to attract those people that want to grow a business, that want to grow their family, that want to have a better life here in the United States.”
Vincent Lau has several upcoming speaking engagements:
- March 5, 2015, Kendall Square Association: “Top Unanswered H-1B Questions”
- March 6, 2015, 12th Annual AILA New England Conference: “PERM: How to Practice When DOL Keeps Changing the Rules”
- May 15-16, 2015, Federal Bar Association’s 2015 Immigration Law Conference, Panel 1: “Hot Topics in PERM”; Panel 2: “Advanced Employment-Based Permanent Residency”
- June 17-19, 2015, 2015 AILA Annual Conference, “Fundamentals of PERM”
Cyrus Mehta has had several recent speaking engagements:
- Speaker, “Immigration Executive Action and LGBT Americans/South Asians—What’s Good, What’s Left Out, And Our Next Steps,” National Queer Asian Pacific Islander Alliance, New York City, February 12, 2015.
- Plenary Session—”Overview of Recent Developments in Immigration Law” and Discussion Leader, “Life With No H-1B Visa,” 36th Annual Immigration Law Update South Beach, American Immigration Lawyers Association (AILA) South Florida Chapter, February 5 and 6, 2015.
- Speaker, “Discussion of Ethics and President Obama’s Immigration Accountability Executive Action,” Ethics 101 CLE, AILA-New York Chapter, January 21, 2015.
A new blog entry by Cora-Ann V. Pestaina was added to Cyrus Mehta‘s blog. “The AAO on H-1B Visa Credential Evaluations and the ‘Three-for-One’ Rule”
David Isaacson, an associate of Cyrus Mehta, recently published a new blog entry, “Ignoring the Elephant in the Room: Initial Reaction to Judge Hanen’s Decision Enjoining DAPA and Expanded DACA”
Angelo Paparelli will speak at NES Financial’s EB-5 Innovation Summit in Los Angeles, California, on March 10, 2015. FOR MORE INFORMATION OR TO REGISTER
Mr. Paparelli also will speak on “What’s New in EB-5 Practice” at the 2015 AILA Rome District Chapter Spring Conference in Rome, Italy, on April 29, 2015. FOR MORE INFORMATION OR TO REGISTER
Mr. Paparelli spoke on “No One Said Green Fees Were Cheap—EB-5 Challenges and Recent Trends” at the 2015 AILA Southern California Winter CLEon February 27, 2015.
Stephen Yale-Loehr was quoted in the Wall Street Journal in an article about a federal court blocking the United States from detaining some asylum seekers.
Mr. Yale-Loehr also was quoted in articles and interviewed about the recent district court ruling temporarily blocking some of the Obama administration’s recent executive actions on immigration:
Print articles:
- USA Today
- CNN
- Univision (in Spanish)
- U.S. News and World Report
- Houston Chronicle (subscription required)
- The Guardian
- National Law Journal
- Boston Herald
- Law360 (subscription required)
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
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin
Visa application wait times for any post
