Headlines:
1. USCIS Finalizes Guidance on ‘Same or Similar’ Occupations and Job Portability -USCIS has finalized guidance on determining whether a new job is in the “same or similar” occupational classification with respect to job portability.
2. USCIS Reaches H-2B Cap for First Half of FY 2016 -USCIS announced it has received a sufficient number of petitions to reach the H-2B cap for the first half of FY 2016. March 15, 2016, was the final receipt date for new H-2B worker petitions requesting an employment start date before April 1, 2016.
3. USCIS Seeks Additional Comments on Revised Form I-9 -USCIS will accept comments until April 27, 2016, on the revised Employment Eligibility Verification Form I-9.
4. DHS Issues Final Rule Amending F-1 Regs, Breaks Record for Public Comments -DHS published a final rule amending regulations to expand optional practical training (OPT) for students with U.S. degrees in science, technology, engineering, or mathematics (STEM) and create new obligations for F-1 students and F-1 employers starting May 10, 2016.
5. Potomac Service Center Now Processing Certain I-765 Cases, Issues Guidance on Correcting Errors -The affected casework includes Form I-765, Application for Employment Authorization, filed by F-1 and M-1 students seeking Optional Practical Training and J-1 dependents.
6. USCIS Extends TPS Designations for Liberia, Sierra Leone, Guinea -The extended designations are effective May 22, 2016, through November 21, 2016. Current TPS beneficiaries from Guinea, Liberia, or Sierra Leone who seek to extend their TPS must re-register during a 60-day period that runs through May 23, 2016.
7. Reminder: USCIS Is Accepting H-1B Petitions for FY 2017 Beginning April 1, 2016 -The Alliance of Business Immigration Lawyers recommends filing during the first five business days in April.
8. CBP Announces Electronic Visa Update System for Certain Chinese B Visa Holders -CBP announced the establishment of the Electronic Visa Update System (EVUS), a new platform under development to enhance border security in accordance with the bilateral arrangement with China to issue 10-year-validity tourist and business visas.
9. State Dept. Announces Phase-Out of Employment Authorization for Diplomats’ Dependents on A-2 Visas -DOS announced the phase-out of DOS’s endorsement of employment authorization requests for dependents of foreign government employees holding A-2 visas who are considered to be permanently resident in the United States for purposes of the Vienna Conventions on Diplomatic and Consular Relations.
10. DHS Launches ‘Known Employer’ Pilot -DHS announced a “Known Employer” pilot to assess a new process for employers seeking to hire certain workers through employment-based visa categories.
11. Pro Bono: ABIL Member Wins Asylum for Liberian Truth and Reconciliation Commission Member -ABIL member Steve Yale-Loehr of Miller Mayer, LLP, recently won asylum for a former member of the Liberian Truth and Reconciliation Commission.
12. Fabio Becomes U.S. Citizen, Considers Running for President -Parts of this article are actually true. We’ll leave you to guess which ones. Happy April Fool’s Day!
13. ABIL Global: South Africa -There have been several developments in business travel.
14. New Publications and Items of Interest -New Publications and Items of Interest
15. ABIL Member/Firm News -ABIL Member/Firm News
16. Government Agency Link -Government Agency Link
Details:
1. USCIS Finalizes Guidance on ‘Same or Similar’ Occupations and Job Portability
On March 18, 2016, U.S. Citizenship and Immigration Services (USCIS) finalized guidance, effective March 21, on determining whether a new job is in the “same or similar” occupational classification with respect to job portability. The policy memorandum instructs USCIS employees on how to use the Department of Labor’s Standard Occupational Classification (SOC) codes and other evidence to determine if a new job is in the same or a similar occupational classification as the original job offer in an Immigrant Petition for Alien Worker (Form I-140) submitted to USCIS.
The memo notes that such adjudications “require individualized assessments that consider the totality of the circumstances and are based on a preponderance of the evidence presented.” The memo states that SOC codes “provide some measure of objectivity in such assessments and thus can help address uncertainty in the portability determination process.” Although the memo focuses on how to interpret and apply SOC codes, it points out that nothing in the memo “is intended to make SOC codes or their descriptions the only factor or a mandatory factor in portability determinations or to otherwise limit USCIS’ flexibility to consider other relevant evidence.”
Despite those assurances, some commenters expressed concerns that the guidance could have the practical effect of leading to a rigid application of SOC codes to “same or similar” determinations. The Alliance of Business Immigration Lawyers (ABIL) referred to comments it submitted on February 29, 2016, regarding a Department of Homeland Security (DHS) proposed rule issued on December 31, 2015, “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” DHS proposed a new 8 CFR § 245.25 intended to “clarify and improve” policies and procedures related to the job portability provisions of § 106(c) of American Competitiveness in the Twenty-First Century Act (AC21). ABIL believes that the proposed 8 CFR § 245.25(c) takes an overly narrow interpretation of the term “same or similar” and results in an interpretation of INA § 204(j) (created by AC21) that is “more inflexible than current practice, lessens job flexibility, and takes much-needed discretion away from USCIS adjudicators.” See #2, “Job Portability Under AC21 for Certain Applicants for Adjustment of Status.”
2. USCIS Reaches H-2B Cap for First Half of FY 2016
On March 21, 2016, U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for the first half of fiscal year (FY) 2016. March 15, 2016, was the final receipt date for new H-2B worker petitions requesting an employment start date before April 1, 2016.
Except as noted below, USCIS will reject new H-2B petitions that were received after March 15, 2016, and that request an employment start date before April 1, 2016.
USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes:
- For FY 2016 only, workers identified as “returning workers” who were previously counted against the annual H-2B cap during FYs 2013, 2014, or 2015;
- Current H-2B workers in the U.S. petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
- Fish roe processors, and fish roe technicians and/or supervisors of fish roe processing; and
- Workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of the Northern Mariana Islands and/or Guam.
USCIS said that to avoid processing delays, petitioners who are including H-2B returning workers on their petition must complete and include the H-2B Returning Worker Certification and are encouraged to write “H-2B Returning Workers” prominently on the envelope and any cover page.
3. USCIS Seeks Additional Comments on Revised Form I-9
U.S. Citizenship and Immigration Services (USCIS) will accept comments until April 27, 2016, on the revised Employment Eligibility Verification, Form I-9. In response to the approximately 130 public comments USCIS received during the previous 60-day notice, USCIS made further changes to the proposed form. Key changes to the form include:
- Validations on certain fields to ensure information is entered correctly;
- Additional spaces to enter multiple preparers and translators;
- Dropdown lists and calendars;
- Embedded instructions for completing each field;
- Ways to allow users to access the instructions electronically, print the form, and clear the form to start over;
- A dedicated area to enter additional information that employers are currently required to notate in the margins of the form;
- A quick-response matrix barcode, or QR code, that generates once the form is printed “that can be used to streamline audit processes”;
- Requiring employees to provide only other last names used in Section 1, rather than all other names used;
- Removing the requirement that those authorized to work provide both their Form I-94 number and foreign passport information in Section 1;
- Separating instructions from the form, in keeping with USCIS practice; and
- Adding a Supplement in cases where more than one preparer or translator is used to complete Section 1.
USCIS noted that after the 30-day comment period ends and public comments are considered, the agency may make further changes to the form. Comments may be submitted by following the instructions in the USCIS notice.
4. DHS Issues Final Rule Amending F-1 Regs, Breaks Record for Public Comments
On March 11, 2016, the Department of Homeland Security (DHS) published a final rule amending regulations to expand optional practical training (OPT) for students with U.S. degrees in science, technology, engineering, or mathematics (STEM) and create new obligations for F-1 students and F-1 employers starting May 10, 2016.
OPT is a form of temporary employment available to F-1 students (except those in English language training programs) that directly relates to a student’s major area of study in the United States. A student can apply to engage in OPT during or after completing his or her academic program. A student can apply for 12 months of OPT at each education level (e.g., one 12-month OPT period at the bachelor’s level and another 12-month period at the master’s level). While school is in session, the student may work up to 20 hours per week pursuant to OPT.
DHS first introduced an extension of OPT for STEM graduates in a 2008 interim final rule. Under the 2008 rule, an F-1 student with a STEM degree from a U.S. institution of higher education could apply for an additional 17 months of OPT (17-month STEM OPT extension), provided that the employer from which the student sought employment was enrolled in and remained in good standing in the E-Verify employment eligibility verification program. On August 12, 2015, the U.S. District Court for the District of Columbia ordered the vacatur of the 2008 rule on procedural grounds and remanded the issue to DHS. The court stayed the vacatur until February 12, 2016, to give DHS the opportunity to issue a new rule related to STEM OPT extensions through notice-and-comment rulemaking.
On October 19, 2015, DHS published a notice of proposed rulemaking (NPRM) to reinstate the STEM OPT extension, with changes intended to enhance the educational benefit afforded by the extension and to increase program oversight, including safeguards to protect U.S. workers. The rule received more than 50,500 comments—the most in DHS history. On January 23, 2016, the court gave DHS additional time to complete the rulemaking following review of public comments and to allow the Department to publish the rule with a 60-day delayed effective date to provide sufficient time for efficient transition to the new rule’s requirements.
DHS has now completed the final rule. Highlights include:
Extension period to increase from 17 to 24 months. Under the amended regulations, F-1 STEM students will be able to extend OPT for an additional 24 months beyond the initial 12 months, replacing the 2008 regulation that allowed F-1 STEM students to receive a 17-month extension of OPT, providing work authorization for employment related to their field of study.
New reporting requirements for F-1 students and university officials. New reporting requirements include: (1) a six-month validation requirement, confirming the F-1 student applicant’s application for work authorization through the OPT program; (2) an annual self-evaluation required of F-1 students, for designated school officials to review; and (3) an affirmative requirement for F-1 students to report any change in employment status or material departure from the adopted Training Plan. This is in addition to the requirement for F-1 employers to report similar changes to designated school officials within five business days, which remains in effect.
F-1 employer requirement to complete formal Training Plan with F-1 student. The new regulations will increase DHS oversight over the OPT program. F-1 employers must complete a formal Training Plan, Form I-983, and comply with new wage requirements. The formal Training Plan must include concrete learning objectives with proper oversight. F-1 employers must set out the terms and conditions of employment, including the specific duties, hours, and compensation.
As part of the Training Plan, F-1 employers must attest that the F-1 employee is paid a salary commensurate with similarly situated workers and that: “(1) it has sufficient resources and trained personnel available to provide appropriate training in connection with the specified opportunity; (2) the student will not replace a full- or part-time, temporary or permanent U.S. worker; and (3) the opportunity will help the student attain his or her training objectives.”
DHS to conduct on-site visits. The new regulations state that DHS has discretion to conduct employer site visits to ensure that F-1 employers meet the requirements of the OPT program. Generally, DHS must provide notice 48 hours before an on-site inspection, unless the visit is conducted in response to a complaint or evidence of noncompliance.
Cap-gap extension language clarified. DHS has revised the cap-gap extension regulation to clarify that the extension for F-1 students with pending H-1B petitions and requests for change of status temporarily extends the OPT period until October 1, the beginning of the new fiscal year.
Additionally, the final rule states:
- Only students who earned a degree from a school accredited by a U.S. Department of Education-recognized accrediting agency and certified by the Student and Exchange Visitor Program (SEVP) may apply for a STEM OPT extension.
- Participating students who receive an additional qualifying degree from an accredited college or university can apply for a second STEM OPT extension.
- Participating students can use a previously earned qualifying degree to apply for a STEM OPT extension. The prior degree must not have already formed the basis of a STEM OPT extension and must be from a school that is both accredited by a U.S. Department of Education-recognized accrediting agency and certified by SEVP at the time of the student’s STEM OPT application. The student’s most recent degree must also be from an accredited and SEVP-certified institution.
- Students must work at least 20 hours per week per employer to qualify.
- Students are permitted a limited period of unemployment during the initial period of post-completion OPT and the STEM OPT extension.
- All STEM OPT employers must participate in DHS’s E-Verify program.
Also on March 11, 2016, SEVP launched a STEM OPT Hub. The Hub includes resources for students, designated school officials, and employers.
THE FINAL RULE, which replaces the existing 2008 interim final rule and amends the current regulations at 8 CFR parts 214 and 274a.
INFORMATION ON COMPLETING THE TRAINING PLAN FORM
5. Potomac Service Center Now Processing Certain I-765 Cases, Issues Guidance on Correcting Errors
On March 1, 2016, U.S. Citizenship and Immigration Services (USCIS) began transferring certain cases to the Potomac Service Center (PSC) from other service centers to balance workloads. The affected casework includes Form I-765, Application for Employment Authorization, filed by F-1 and M-1 students seeking Optional Practical Training (OPT) and J-1 dependents.
If USCIS transfers a case, the agency will send the applicant a transfer notice. The original receipt number will not change and the transfer will not delay processing, USCIS said.
Also, the filing location and instructions for these forms are not changing. USCIS is instructing applicants to continue to file the forms at the address listed under “Where to File” in the I-765 instructions.
How to correct errors. If an Employment Authorization Document (EAD) card was approved by the PSC and contains incorrect information that the applicant believes is due to USCIS error, the applicant should submit a letter that explains the error, and include the EAD card containing the incorrect information, documents showing that USCIS made an error (such as a copy of the application sent to USCIS with the correct information, and a copy of the applicant’s birth certificate with the correct name). The letter and supporting documents should be sent to the Nebraska Service Center:
U.S. Citizenship and Immigration Services
Nebraska Service Center
ATTN CCS Unit
P.O. Box 82521
Lincoln, NE 68501-2521
USCIS asks that individuals not send the letter and card to the PSC. “If USCIS made an error, you do not need to submit a new Form I-765 or pay a new filing fee,” USCIS noted.
6. USCIS Extends TPS Designations for Liberia, Sierra Leone, Guinea
On March 22, 2016, U.S. Citizenship and Immigration Services (USCIS) announced the extension of temporary protected status (TPS) designations of Liberia, Sierra Leone, and Guinea for an additional six months. The extended designation is effective May 22, 2016, through November 21, 2016. Current TPS Guinea, Liberia, or Sierra Leone beneficiaries seeking to extend their TPS must re-register during a 60-day period that began on March 22, 2016, and runs through May 23, 2016. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible.
USCIS noted “significant improvements in the conditions in all three countries since their designations for TPS in November 2014,” but said the lingering effects of the Ebola virus disease outbreak and continued recovery challenges support a six-month extension.
The six-month extension allows TPS re-registrants to apply for a new employment authorization document (EAD). Eligible TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of November 21, 2016. USCIS said it recognizes that some re-registrants may not receive their new EADs until after their current work permits expire. Therefore, USCIS is automatically extending current TPS Guinea, Liberia, and Sierra Leone EADs bearing a May 21, 2016, expiration date for six months. These existing EADs are now valid through November 21, 2016.
To re-register for TPS, current beneficiaries must submit:
- Form I-821, Application for Temporary Protected Status (re-registrants do not need to pay the Form I-821 application fee);
- Form I-765, Application for Employment Authorization, regardless of whether they want an EAD;
- The I-765 application fee (or a fee-waiver request) only if they want an EAD. If the re-registrant does not want an EAD, no application fee is required; and
- The biometric services fee (or a fee-waiver request) if they are age 14 or older.
Individuals who still have a pending initial TPS Guinea, Liberia, or Sierra Leone application do not need to submit a new I-821. However, if they currently have a TPS-related EAD and want a new EAD, they should submit:
- Form I-765, Application for Employment Authorization;
- The Form I-765 application fee, regardless of their age; and
- A copy of the receipt notice for the initial Form I-821 that is still pending.
USCIS said it will reject the TPS application of any applicant who fails to submit the required filing fees or a properly documented fee-waiver request. Applicants may ask USCIS to waive any fees based on an inability to pay by filing Form I-912, Request for Fee Waiver, or by submitting a written request. Fee-waiver requests must be accompanied by supporting documentation.
ADDITIONAL INFORMATION ABOUT TPS—including guidance on eligibility, the application process, and where to file
The Federal Register notices contain further details, including application requirements and procedures, and the six-month auto-extension of current EADs.
7. Reminder: USCIS Is Accepting H-1B Petitions for FY 2017 Beginning April 1, 2016
On April 1, 2016, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions subject to the fiscal year (FY) 2017 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.
The congressionally mandated cap on H-1B visas for FY 2017 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.
The Alliance of Business Immigration Lawyers (ABIL) recommends filing during the first five business days in April. Contact your ABIL member for help with H-1B applications.
8. CBP Announces Electronic Visa Update System for Certain Chinese B Visa Holders
On March 15, 2016, U.S. Customs and Border Protection (CBP) announced the establishment of the Electronic Visa Update System (EVUS), a new platform under development to enhance border security in accordance with the bilateral arrangement with China to issue 10-year-validity tourist and business visas.
Beginning in November 2016, nationals of the People’s Republic of China holding 10-year visas B-1/B-2, B-1, and B-2 visas must complete an online form to update certain biographic information. Travelers will need to enroll in EVUS before traveling to the United States. An EVUS enrollment is valid for two years or until the traveler obtains a new passport, whichever comes first.
“More than 2.7 million nationals of the People’s Republic of China are part of the 10-year visa program, a milestone in diplomatic relations between the U.S. and China,” said CBP Commissioner R. Gil Kerlikowske. “The Electronic Visa Update System will enable CBP to enhance the security of the program while facilitating legitimate travel.”
In addition to having valid 10-year visas and being required to complete EVUS enrollments before their first travel to the United States, such travelers will need to update their enrollments at least once every two years to be admitted into the United States. A nominal fee will be charged at the time of the EVUS enrollment and subsequent updates. The update will generally be valid for two years and will help to facilitate entry into the United States.
EVUS will be launched in November 2016. Travelers will be asked to update or verify their name, address, date of birth, passport number, and other basic biographic information needed to expedite entry into the United States. Visa holders do not need to do anything until the platform has officially launched, CBP said.
The EVUS process is similar to the process that travelers from 38 other countries must follow before traveling to the United States, CBP noted. “If Chinese travelers do not update their information at least every two years, or upon obtaining new passports after EVUS becomes effective, they will not be able to use their 10-year visas,” CBP said.
9. State Dept. Announces Phase-Out of Employment Authorization for Diplomats’ Dependents on A-2 Visas
The Department of State (DOS) recently announced the phase-out of DOS’s endorsement of employment authorization requests for dependents of foreign government employees holding A-2 visas who are considered to be permanently resident in the United States for purposes of the Vienna Conventions on Diplomatic and Consular Relations (“PA2 employees”). DOS’s Office of Foreign Missions (OFM) will consider new applications only from dependents of PA2 employees who began employment between July 1 and December 31, 2015. OFM will consider renewal applications only from a PA2 employee’s dependents whose current employment authorization cards expire on or before June 30, 2016.
10. DHS Launches ‘Known Employer’ Pilot
The Department of Homeland Security (DHS) announced on March 3, 2016, a “Known Employer” pilot to assess a new process for employers seeking to hire certain workers through employment-based visa categories.
By modifying the process U.S. Citizenship and Immigration Services (USCIS) uses to review an employer’s eligibility to sponsor individuals under certain employment-based immigrant and nonimmigrant classifications, the Known Employer pilot is expected to reduce paperwork, costs, and delays in the processing of these benefit requests. USCIS will oversee the pilot in collaboration with the DHS Office of Policy, U.S. Customs and Border Protection (CBP), and the Department of State (DOS).
“Today, we’re partnering with a select group of representative organizations across a variety of industries to determine how we can improve efficiency and cut costs. If successful, we will continue to build on this trial program and promote robust trade, travel, and economic prosperity,” said USCIS Director León Rodríguez.
The goals of the Known Employer pilot are to make the employment eligibility adjudication process more efficient and reduce delays for U.S. employers that wish to employ foreign workers under certain immigrant and nonimmigrant visa programs by:
- Reducing the amount of paperwork filed by employers and retained by USCIS;
- Promoting consistency in the adjudication of employment-based petitions and applications;
- Streamlining the adjudicative process to achieve greater efficiency within USCIS; and
- Providing greater support to CBP and DOS in support of greater efficiency and consistency at ports of entry and consular posts.
According to reports, five employers had confirmed their participation in the pilot as of the launch date: Citigroup, Inc.; Ernst & Young LLP; Kiewit Corporation; Schaeffler Group USA Inc.; and Siemens Corp.
Under the Known Employer pilot, up to nine preselected employers will file applications requesting that USCIS predetermine that they meet certain requirements relating to certain immigrant and nonimmigrant visa classifications. When making this request, employers will create a profile in the Web-based Known Employer Document Library (KEDL), and upload documents relating to the requirements. USCIS officers will review and predetermine whether a prospective employer has met certain requirements relating to the visa classifications. If USCIS approves the employer’s predetermination request, the employer may then file petitions or applications for individual employees without needing to resubmit company information with each petition or application.
Reportedly, immigrant classifications included in the Known Employer pilot are E-12 (outstanding professor or researcher) and E-13 (multinational executive or manager). Nonimmigrant classifications included in the pilot are H-1B (specialty occupation worker), L-1A (intracompany transferee in a managerial or executive capacity), L-1B (intracompany transferee in a position involving specialized knowledge), and TN (Trade NAFTA: Canadian and Mexican citizens engaged in business activities at a professional level under the North American Free Trade Agreement).
Employers will not be charged any additional fees to participate in the Known Employer pilot. The pilot is scheduled to last for up to one year. However, USCIS may terminate or extend the pilot at any time. DHS and DOS will solicit ongoing feedback from participants. If the pilot is successful, DHS is expected to seek permanency for the program and open it to all eligible employers.
DHS first announced in January 2015 that it would explore a Known Employer pilot under the U.S.-Canada Beyond the Border initiative. The pilot also was recommended in a report from federal agencies submitted to President Obama in July 2015, “Modernizing and Streamlining Our Legal Immigration System for the 21st Century.”
11. Pro Bono: ABIL Member Wins Asylum for Liberian Truth and Reconciliation Commission Member
ABIL member Steve Yale-Loehr of Miller Mayer, LLP, recently won asylum for a former member of the Liberian Truth and Reconciliation Commission. The commission, set up after the civil war in Liberia, exposed and recommended for prosecution ex-warlords and others who committed war crimes and crimes against humanity during the civil war in Liberia. The commission’s report prompted death threats against the client. He fled to the United States and applied for asylum to U.S. Citizenship and Immigration Services (USCIS). A USCIS asylum officer interviewed the client in late 2013. Over two years later, the client finally received asylum. Needless to say, he is extremely happy.
Miller Mayer represented the client pro bono.
12. Fabio Becomes U.S. Citizen, Considers Running for President
On April 1, 2016, romance novelists and fans swooned upon hearing that Italian immigrant and new U.S. citizen, heartthrob, celebrity, literary giant, and model Fabio Lanzoni is reportedly contemplating a run for the U.S. presidency. When asked why, Fabio lamented the “abysmal state of political discourse in this country, which has reached shockingly low levels.” He seeks to raise it to the lofty heights of blond ambition and beyond: “Who better than Fabio to cut through all the partisan gridlock in Washington? I’m the quintessential, ultimate outsider!”
When asked about his platform, Fabio said, “I’m a people person. I love people. I would definitely go for the people.” In substance, political pundits and observers note, this is clearly miles ahead of most of the other candidates.
Although he is now a U.S. citizen who has been in the United States for 36 years, Fabio was not born here or born to American parents and thus it appears that under the Constitution, he is ineligible for the U.S. presidency. However, there are lots of reasons why Americans may want to reconsider all that blah-blah-blah in the Constitution. On the day Fabio received U.S. citizenship, for example, Claire Nicholson, a USCIS spokesperson, tweeted: “America is about to get a little more romantic! Today, Fabio is becoming a #newUScitizen! #WelcomeFabio.” She also noted, “America just got better hair!” The latter point could be seen as posing serious competition for candidate Donald Trump, among others. The campaign could get even hairier than it is now.
Fabio acknowledges that he has the star power needed these days to compete successfully for the presidency. Even long ago, when Fabio received permanent residence, he was asked why he thought he might have gotten that status, and he replied simply, “Because I am Fabio!” He didn’t mention the hard work of his immigration attorney, Carl Shusterman, but we’re sure he appreciated all that.
Parts of this article are actually true. We’ll leave you to guess which ones. Happy April Fool’s Day!
13. ABIL Global: South Africa
There have been several developments in business travel.
In recent months, there have been several developments of interest to business travelers to South Africa:
- The Department of Home Affairs has implemented the International Civil Aviation Organization’s (ICAO’s) requirement that as of November 24, 2015, a non-machine-readable travel document will not be accepted at any South African port of entry. The ban extends to passports that have been extended or renewed manually, as some countries still allow. The Department announced that this restriction does not apply to travelers using Emergency Travel Documents. The Department also announced that persons who had entered South African on non-machine-readable travel documents before November 24, 2015, will be allowed to depart. In addition, persons who enter South Africa on machine-readable travel documents and who lose their passports in-country can depart with Emergency Travel Documents.
- An amendment of the Immigration Act in 2014 provided that the spouse of a South African citizen who had entered the country on a short-term visitor visa (for up to 90 days) could not apply from within South Africa to change status to that of a long-term visitor (for up to two years) to accompany the South African spouse. In February 2016, the High Court ruled, however, that it is now lawful for a foreign spouse to apply for such a change of visa conditions from within the country.
- Also in February 2016, the Department announced that it was immediately withdrawing a dispensation to persons holding asylum-seeker permits that had allowed them to apply for temporary residence (so long as they qualified for the relevant visa)—and with retroactive effect. The withdrawal of the dispensation is now the subject of an urgent High Court challenge to be heard at the end of April 2016.
Finally, the Minister of Home Affairs is expected to announce shortly a Green Paper on migration. This will constitute the first formal re-thinking of immigration policy in South Africa since the revision of apartheid-era immigration law in the late 1990s.
14. New Publications and Items of Interest
DHS OIG report on automation of immigration processing. The Department of Homeland Security’s Office of Inspector General (OIG) released a report, “Automation of Immigration Processing Remains Ineffective,” on March 9, 2016. The report notes, among other things, that although USCIS deployed the Electronic Immigration System (ELIS) in May 2012, to date only two of approximately 90 types of immigration benefits and services are available for online filing. The current ELIS approach “also has not ensured stakeholder involvement, performance metrics, system testing, or user support needed for ELIS to be effective.” The OIG also noted that USCIS now estimates that it will take three more years (over four years longer than estimated) and an additional $1 billion to automate all benefit types. “Until USCIS fully implements ELIS with all the needed improvements, the agency will remain unable to achieve its workload processing, customer service, and national security goals,” the OIG said. REPORT (#OIG-16-48).
USCIS report on H-1B petitions for FY 2015. U.S. Citizenship and Immigration Services (USCIS) issued a “Report on H-1B Petitions: Fiscal Year 2015 Annual Report to Congress,” on February 16, 2016. The report notes, among other things, that in FY 2015, USCIS received 348,669 petitions and approved 275,317 petitions. Of the 275,317 petitions that were approved, 237,901 were received and approved in FY 2015, whereas 37,416 petitions were received before FY 2015 but ultimately approved in FY 2015. REPORT
The latest E-Verify webinar schedule from USCIS is available HERE.
The 2015 edition of the Global Business Immigration Practice Guide has been released by LexisNexis. Dozens of members of the Alliance of Business Immigration Lawyers (ABIL) 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 chapters on Ghana and Peru. 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, Singapore, 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 for:
- 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.
An excerpt of the book is on the ABIL website.
The list price is $359, but a 15% discount is available by visiting LexisNexis and entering discount code “ABIL15”. Contact your Lexis/Nexis sales representative; call 1-800-833-9844 (United States), 1-518-487-3385 (international); fax 1-518-487-3584
ABIL on Twitter. The Alliance of Business Immigration Lawyers is available on Twitter: @ABILImmigration. RECENT ABIL BLOGS
15. ABIL Member/Firm News
The Alliance of Business Immigration Lawyers (ABIL) was the only immigration network listed in Chambers Global for 2016.
Various ABIL members were listed in the 2016 edition of Chambers Global.
U.S. members:
- Mark Ivener
- Ronald Klasko
- Charles Kuck
- Sharon Mehlman
- Cyrus Mehta
- Angelo Paparelli
- Julie Pearl
- Bernard Wolfsdorf
- Stephen Yale-Loehr
Global members:
ABIL firms, United States:
- Fredrikson & Byron, P.A.
- Ivener & Fullmer LLP
- Klasko Immigration Law Partners, LLP
- Kuck Immigration Partners LLC
- Foster LLP
- Mehlman Barnes LLP
- Cyrus D. Mehta & Partners, PLLC
- Maggio & Kattar, P.C.
- Pearl Law Group
- Siskind Susser PC
- Wolfsdorf Rosenthal LLP
- Miller Mayer, LLP
ABIL firms, Global:
- Bener Law Office
- Laura Devine Solicitors
- Sagardoy Abogados
- Gomberg Dalfen
- Barrios & Fuentes Abogados
- Kingsley Napley
- Veirano Advogados
ABIL submitted comments on February 29, 2016, on a Department of Homeland Security proposed rule issued on December 31, 2015, “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.”
Mr. Klasko participated as a speaker at the 37th Annual American Immigration Lawyers Association’s South Florida Immigration Law Update, held on February 5, 2016. Mr. Klasko was a panelist for the sessions, “Strategies for Working Around the H-1B Shortage,” “EB-5, Dead and Revived: What’s Left?” and “Mandamus and Declaratory Judgment: How, When and Why.” FOR MORE INFORMATION
Klasko Immigration Law Partners, LLP, will present “Immigration 2016: New Rules, New Opportunities” on April 19, 2016, in Philadelphia, Pennsylvania. FOR MORE INFORMATION OR TO REGISTER
Mr. Kuck has published a new blog entry. “USCIS Amended F-1 STEM OPT Rules Go Into Effect May 10, 2016”
Vincent Lau has published a new blog entry. “Traveling Abroad as an International Student”
Robert F. Loughran, Foster LLP Partner, detailed the immigration positions of the U.S. presidential candidates and the immigration changes enacted by President Obama via executive actions at the Foster Global Immigration Update Seminar on March 1, 2016, in San Antonio, Texas, and March 8, 2016, in Austin, Texas. In a separate session, Mr. Loughran outlined E-Verify, the Form I-9 reverification process and how visa holders could manage driver’s license renewals under the SAVE system, as well as important considerations for immigrants traveling abroad while extensions of status were pending.
Mr. Loughran met on February 4, 2016, with the management team of the El Paso, Texas, Field Office of U.S. Citizenship and Immigration Services and the Fraud Detection and National Security Directorate as a member of the State Bar Committee on Laws Relating to Immigration. The next day, he toured facilities and met with consular officers and section chiefs of the U.S. Consulate General in Ciudad Juarez, Mexico, to discuss current immigrant visa procedures and the post’s new E-2 Treaty Investor visa responsibilities.
Cyrus Mehta (bio: http://www.abil.com/lawyers/lawyers-mehta.cfm) has published several new blog entries.
“Will Avvo Disrupt Immigration Law Practice Like Uber Has Disrupted Taxis?”
“Suffocating the Foreign Entrepreneur Under the New STEM Optional Practical Training Rule”
“The Ethical Obligations of a Lawyer Who Represents a Three Year Old Child”
“Senator Grassley ‘Hacks’ H-1B Visa for Foreign Entrepreneurs”
Mr. Mehta was Program Chair for “Basic Immigration Law 2016,” Practising Law Institute, New York City, and live Webcast, March 10, 2016.
Mr. Mehta served as a judge on the New York University Law Moot Court Board, National Immigration Law Competition, New York City, February 26, 2016.
Angelo Paparelli was quoted in the Bloomberg BNA Daily Labor Report on March 21, 2016, in “USCIS Final Guidance on I-140 Job Portability Continues to Use Labor Department’s Codes.” Mr. Paparelli observed, “There’s been a little bit of a softening and a watering down of absolutely strict reliance on the SOC codes,” but “you have to understand the bureaucratic mind.” He noted that the guidance is an instruction to use the Department of Labor’s Standard Occupational Classification codes, which means that USCIS adjudicators will see submission of other types of evidence as indicating that “there must be something wrong with your case.” He said that adjudicators look for a “formulaic approach” because they have many applications to process. “They’ve forgotten the public policy behind the whole concept of portability,” he noted, predicting that the new guidance will make it even harder to change jobs than before. Bloomberg BNA Daily Labor Report is available by free trial or subscription.
Bernard Wolfsdorf of Wolfsdorf Rosenthal LLP moderated and spoke on a panel of top U.S. immigration attorneys at the 6th Annual Investment In America Summit in Shanghai, China, on March 12-13, 2016; Beijing, China, on March 17, 2016; and Shenzhen, China, on March 19, 2016, regarding Solutions to the EB-5 Waiting Line. FOR MORE INFORMATION
Mr. Wolfsdorf was again ranked by Chambers and Partners Global as one of the top U.S. immigration lawyers in the nation. The 2016 publication recognizes Mr. Wolfsdorf as “an outstanding attorney and legal scholar. He is particularly recognized for his contributions in the EB-5 and consular processing arenas.” Wolfsdorf Rosenthal LLP was also one out of fifteen law firms across the nation recognized in the guide.
Mr. Yale-Loehr spoke on March 23, 2016, at the EB-5 Finance WebCourse, sponsored by the Council of Development Finance Agencies. FOR MORE INFORMATION
Mr. Yale-Loehr was quoted in China Daily on March 9, 2016, in “Trump-Branded Building Gets Chinese Boost.” He noted that “[i]nvestors from China currently account for almost 90 percent of all EB-5 investors.” He also pointed out that “[a]lthough EB-5 investors only account for about 1 percent of all U.S. immigration annually, the program has an outsized economic impact. EB-5 applicants have invested more than $13 billion since 2008 and have created tens of thousands of jobs for U.S. workers.”
16. Government Agency Link
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
