Headlines:
1. USCIS, DOS Launch e-Approval for H-2A Petitions -USCIS and DOS announced the launch of e-Approval for Form I-129, Petition for a Nonimmigrant Worker, for the H-2A (temporary agricultural worker) classification.
2. USCIS Will Now Use Pre-Paid Mailers To Send H-2A Receipt Notices -Coinciding with the launch of e-Approval, USCIS has begun using pre-paid mailers provided by petitioners to send out receipt notices for H-2A (temporary agricultural worker) petitions.
3. Employers May Submit Inquiries If Extension of Status/Change of Employer Petitions Have Been Pending for 210 Days or More -USCIS recently began allowing petitioners who filed Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of status or change of employer to submit an inquiry after their petition has been pending for 210 days or more.
4. DHS Extends TPS for Nicaragua and Honduras -DHS has extended TPS for eligible nationals of Nicaragua and Honduras (and those without nationality who last habitually resided in one of those two countries) for an additional 18 months, through January 5, 2018. The 60-day re-registration period runs through July 15, 2016.
5. USCIS Reaches H-2B Cap for FY 2016 -May 12, 2016, was the final receipt date for new H-2B worker petitions requesting an employment start date before October 1, 2016.
6. USCIS Reaches CW-1 Cap for FY 2016 -May 5, 2016, was the final receipt date for CW-1 (CNMI-Only Transitional Worker) petitions requesting an employment start date before October 1, 2016.
7. USCIS Launches Optional Forms Checklist Pilot for Employment Authorization Application -The checklist identifies what documents need to be included in the initial filing and the important items needed to complete the form, such as a signature.
8. OSC Launches Submission of Charge Forms Online -Anyone who alleges that he or she is a victim of discrimination or an authorized person on behalf of the victim can now submit a charge form online within 180 days of the alleged date of discrimination.
9. ABIL Global: Belgium -This article summarizes details on work permit requirements and exemptions for foreign employees in Belgium.
10. New Publications and Items of Interest -New Publications and Items of Interest
11. ABIL Member/Firm News -ABIL Member/Firm News
12. Government Agency Links –Government Agency Links
Details:
1. USCIS, DOS Launch e-Approval for H-2A Petitions
U.S. Citizenship and Immigration Services (USCIS) and the U.S. Department of State (DOS) recently announced the launch of e-Approval for Form I-129, Petition for a Nonimmigrant Worker, for the H-2A (temporary agricultural worker) classification. This new electronic process, begun on May 16, 2016, allows USCIS to send approval information for H-2A petitions to DOS by the end of the next business day. DOS will accept this electronic information in place of a Form I-797 approval notice and allow its consular posts to proceed with processing an H-2A nonimmigrant visa application, including conducting any required interview.
USCIS will continue the current practice of updating My Case Status online upon approving a case and mailing approval notices to petitioners. Employers will not be charged any additional fees for the USCIS/DOS e-Approval process.
USCIS said the goals of the USCIS/DOS e-Approval process are to:
- Reduce delays for U.S. employers that wish to employ H-2A agricultural workers;
- Reduce the amount of paperwork between USCIS and DOS;
- Replace the current paper-based USCIS/DOS notification process with an electronic process that will make the visa process more efficient for applicants; and
- Provide greater efficiency and consistency in transmitting information to DOS consular posts.
2. USCIS Will Now Use Pre-Paid Mailers To Send H-2A Receipt Notices
Coinciding with the launch of e-Approval, U.S. Citizenship and Immigration Services (USCIS) has begun using pre-paid mailers provided by petitioners to send out receipt notices for H-2A (temporary agricultural worker) petitions. USCIS said this is a change from standard processing at USCIS service centers, which normally use pre-paid mailers only for final decision notices.
Under this change, H-2A petitioners may now submit two pre-paid mailers if they want to expedite delivery of both the receipt notice and the final decision notice. Any submitted pre-paid mailers for H-2A petitions must still meet the same requirements for their use with other forms and classifications.
Until further notice, USCIS will:
- Use any pre-paid mailer provided by an H-2A petitioner primarily to send the receipt notice.
- Send the final decision notice (such as a Notice of Approval or Notice of Denial) in a pre-paid mailer only if the H-2A petitioner provided a second pre-paid mailer.
- Continue to send all other notices regarding an H-2A petition, including any Requests for Evidence, by regular U.S. mail.
USCIS said it revised how it processes pre-paid mailers for H-2A petitions “in recognition of stakeholder interest in expediting the delivery of receipt notices for this very time-sensitive classification.” This change is limited to H-2A petitions.
3. Employers May Submit Inquiries If Extension of Status/Change of Employer Petitions Have Been Pending for 210 Days or More
U.S. Citizenship and Immigration Services (USCIS) recently began allowing petitioners who filed Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of status or change of employer to submit an inquiry after their petition has been pending for 210 days or more. This inquiry may be based on the petition being outside of normal processing times.
Employers whose I-129 petitions have been pending for at least 210 days may submit inquiries by calling the National Customer Service Center at 1-800-375-5283 (TDD for hearing-impaired: 1-800-767-1833). Those asking about case status should provide the original receipt number and specify that the case has been pending for 210 days or more.
4. DHS Extends TPS for Nicaragua and Honduras
The Department of Homeland Security has extended temporary protected status (TPS) for eligible nationals of Nicaragua and Honduras (and those without nationality who last habitually resided in one of those two countries) for an additional 18 months, effective July 6, 2016, through January 5, 2018.
Current Nicaraguan and Honduran TPS beneficiaries who want to extend their TPS must re-register during the 60-day re-registration period that began May 16, 2016, and runs through July 15, 2016. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible.
The 18-month extension allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Those who re-register during the 60-day period and request a new EAD will receive one with an expiration date of January 5, 2018. 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 Nicaragua EADs with a July 5, 2016, expiration date for six months. These existing EADs are now valid through January 5, 2017.
To re-register, current TPS 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 Form 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.
USCIS noted that it is transitioning to process Nicaraguan TPS applications electronically (the announcements do not mention electronic processing with respect to Honduran TPS applications). However, applicants must continue to complete the paper forms and submit them by mail. Once USCIS receives the documents, the agency will scan them in for processing. Nicaraguan applicants with properly filed submissions will receive a USCIS Account Acceptance Notice in the mail with instructions on how to create a USCIS online account. USCIS will still process TPS Nicaragua applications even if applicants choose not to access their online account. The agency will also send copies of case notifications via the U.S. Postal Service.
TPS ANNOUNCEMENT FOR NICARAGUA
RELATED FEDERAL REGISTER NOTICE FOR NICARAGUA
RELATED FEDERAL REGISTER NOTICE FOR HONDURAS
5. USCIS Reaches H-2B Cap for FY 2016
U.S. Citizenship and Immigration Services (USCIS) recently announced that it has received a sufficient number of petitions to reach the congressionally mandated H-2B cap for fiscal year (FY) 2016. May 12, 2016, was the final receipt date for new H-2B worker petitions requesting an employment start date before October 1, 2016.
USCIS said that except as noted below, the agency will reject new H-2B petitions received after May 12, 2016, that request an employment start date before October 1, 2016.
The agency will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes the following types of petitions:
- For FY 2016 only, workers certified and confirmed 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, fish roe technicians, and 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 or Guam.
USCIS said it will consider H-2B petitions requesting an employment start date on or after October 1, 2016, toward the FY 2017 H-2B cap. These petitions will be subject to all eligibility requirements for FY 2017 H-2B cap filings.
To avoid processing delays, petitioners who are including H-2B returning workers on their petitions 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. MORE INFORMATION. ADDITIONAL H-2B CAP INFORMATION.
FOR MORE INFORMATION ABOUT THE H-2B WORK PROGRAM
6. USCIS Reaches CW-1 Cap for FY 2016
U.S. Citizenship and Immigration Services (USCIS) announced on May 19, 2016, that it has received a sufficient number of petitions to reach the numerical limit, or cap, of 12,999 workers who may be issued CW-1 visas or otherwise provided with CW-1 status for fiscal year (FY) 2016. May 5, 2016 was the final receipt date for CW-1 worker petitions requesting an employment start date before October 1, 2016.
The CNMI-Only Transitional Worker (CW) visa classification allows employers in the Commonwealth of the Northern Mariana Islands (CNMI) to apply for temporary permission to employ foreign nonimmigrant workers who are otherwise ineligible to work under other nonimmigrant worker categories. The CW classification provides a method for transition from the former CNMI foreign worker permit system to the U.S. immigration system.
USCIS said it will reject CW-1 petitions that were received after May 5, 2016, and that request an employment start date before October 1, 2016. This includes CW-1 petitions for extensions of stay that are subject to the CW-1 cap. The filing fees will be returned with any rejected CW-1 petition.
If an extension petition is rejected, the beneficiaries listed on that petition are not permitted to work beyond the validity period of the previously approved petition. Therefore, affected beneficiaries, including any CW-2 derivative family members of a CW-1 nonimmigrant, must depart the CNMI within 10 days after the CW-1 validity period has expired, unless they have some other authorization to remain under U.S. immigration law.
Form I-129CW petitions that are generally subject to the CW-1 cap include new employment petitions and extension of stay petitions. All CW-1 workers are subject to the cap unless the worker has already been counted toward the cap in the same fiscal year. The CW-1 cap does not apply to CW-2 dependents.
USCIS said it encourages CW-1 employers to file a petition for a CW-1 nonimmigrant worker up to 6 months in advance of the requested employment start date, and to file as early as possible within that time frame. However, USCIS will reject a petition if it is filed more than 6 months in advance.
USCIS is currently accepting CW-1 petitions requesting employment start dates on or after October 1, 2016 (which apply to the FY 2017 CW-1 cap).
MORE INFORMATION ABOUT CW-1 WORK PROGRAM
7. USCIS Launches Optional Forms Checklist Pilot for Employment Authorization Application
U.S. Citizenship and Immigration Services (USCIS) has launched a pilot study to offer an optional checklist for the submission of Form I-765, Application for Employment Authorization. The checklist identifies what documents need to be included in the initial filing and the important items needed to complete the form, such as a signature.
The pilot study is specific to applicants who have filed for adjustment of status. USCIS said it will use the results of the study to determine whether the agency will expand the availability of optional checklists for other USCIS forms where a checklist is not currently available. USCIS notes that the checklist does not replace or change the form instructions and statutory or regulatory requirements.
USCIS is conducting a similar pilot study with Form I-129F, Petition for Alien Fiancé(e).
8. OSC Launches Submission of Charge Forms Online
The Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) recently announced that members of the public can now complete and submit charge forms online through OSC’s website, in addition to the methods currently available (mail, fax, or email).
Anyone who alleges that he or she is a victim of discrimination or an authorized person on behalf of the victim can submit a charge form within 180 days of the alleged date of discrimination. Grounds under U.S. immigration law may include discrimination on the basis of citizenship status, national origin, document abuse, or retaliation.
OSC said it will add more languages “in the near future.”
9. ABIL Global: Belgium
Below is a summary of details on some work permit exemptions, related to technical work, for foreign employees in Belgium.
In principle, any employment in Belgium of a foreign employee requires a work permit, unless an exemption applies.
Several activities are considered business visitors’ activities, which do not trigger a work permit requirement, such as technical activities like initial assembly or first installation of a product. Such a service is defined as: (i) an essential part of a sales/supply agreement; (ii) necessary for the use of the product; and (iii) provided by qualified and/or specialized employees of the supplier. Work in the construction/building industry is excluded.
Official comments from the authorities refer to the following example:
An American company sells a highly technological printing press to a Belgian printing company. The company sends two technicians. They have to install the printing press, adjust it, and provide the Belgian client’s personnel with a training course. All of this takes 5 days. This American company and its employees are exempt.
The work permit exemption only applies to employees who are posted/assigned to Belgium, and the work cannot take longer than 8 days. There is no salary requirement.
Another business visitor activity is urgent maintenance of and repair work on a product. The scope of this work by specialized technical workers is the performing of urgent maintenance of and repair work on goods supplied by the foreign employer to a Belgian customer. The regulations explicitly confirm that IT work falls under the scope of this work permit exemption.
Official comments from the authorities refer to the following example:
The air-conditioning in a Belgian company is defective. The company contacts the supplier in…, who sends out a technician. After half a day the technical problem is solved. The … employer/supplier is exempt from the declaration.
This exemption only applies to employees who are posted/assigned to Belgium, and the employee cannot work more than 5 days per month in Belgium. The remuneration of the employee must be at least equal to the Belgian minimum wage.
The employer who invokes a work permit exemption must be able to prove that the conditions for the exemption are met (such as in the event of audit by social inspection services). There are specific rules regarding the minimum initial documentation required:
- For initial assembly and/or first installation of a product: a sworn statement by the employer and a copy of the supply contract;
- For urgent maintenance of and repair work on a product: a sworn statement by the employer and a statement by the client regarding the urgency of the work.
In the event of an audit, the social inspection services can “overrule” the employer’s sworn statement: they can opine on the basis of the facts that the work permit exemption does not apply. This could result in civil or criminal proceedings.
As a general requirement, to be able to invoke a work permit exemption, the employees must be legally residing in Belgium. Unless the employees reside in a hotel, they must make a declaration of arrival with the municipal authorities of the town where they will reside within three working days of arrival.
Legal residence in Belgium for visa waiver citizens implies that the employees have not yet resided in the Schengen area more than 90 days in any 180-day period. Furthermore, these employees must hold a travel document that (i) is valid “at least 3 months after the intended date of departure from the territory of the Member States” (this requirement may be waived in “a justified case of emergency”), and (ii) has “been issued within the previous 10 years.”
10. New Publications and Items of Interest
A new Web page on the H-1B and L-1 fee increases required by the Consolidated Appropriations Act, 2016, provides information about the fees and who must pay them. The new law requires certain petitioners to submit an additional fee of $4,000 for certain H-1B petitions and an additional $4,500 for certain L-1A and L-1B petitions. USCIS said this posting is in response to stakeholder comments and questions about a previously issued Web alert.
The latest E-Verify webinar schedule from USCIS is available HERE.
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 (ABIL) co-authored and edited the guide, which is a one-stop resource for dealing with questions related to business immigration issues in 30 immigration hotspots around the world.
The latest edition adds chapters on Malta and Romania. Other chapters cover Australia, Belgium, Brazil, Canada, China, Costa Rica, the European Union, France, Germany, Ghana, Hong Kong, India, Ireland, Israel, Italy, Japan, Mexico, the Netherlands, Nigeria, Peru, 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 $431, 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
11. ABIL Member/Firm News
The following ABIL members will speak at the American Immigration Lawyers Association’s Annual Conference in Las Vegas, Nevada, on June 22-25, 2016:
“Caveat Emptor: The Ethics of Choosing and Working with Service Vendors Roundtable”
Rami Fakhoury
“Creative Strategies for Dependents Roundtable”
Elise A. Fialkowski (H. Ronald Klasko‘s partner)
“Researchers Don’t Always Wear Lab Coats: Taking Advantage of Special Provisions for Researchers Roundtable”
Robert Aronson (Laura Danielson‘s partner) (discussion leader)
“Hot Topics with the AILA National Officers”
William Stock (Mr. Klasko’s partner)
” ‘Challenging’ Prevailing Wage Issues”
Vincent Lau (discussion leader)
“Mission Impossible: Managing Your Staff and Non-Staff”
“AILA Ethics Compendium Live Roundtable”
Mr. Mehta (discussion leader)
“Employment-Based Immigration: The Preference Categories”
Stephen Yale-Loehr (discussion leader)
“What Every U.S. Immigration Lawyer Should Know About Outbound Business and Employment Visas Roundtable”
“Establishing the Employer-Employee Relationship in NIV Third-Party Placements Roundtable”
Cora-Ann Pestaina (Mr. Mehta’s partner)
“Winning at the Consular Game”
“EB-5 Nuts and Bolts”
Bernard Wolfsdorf (discussion leader)
“Complexities and Issues in Dealing with EB-5 Regional Centers”
Carolyn Lee (Mr. Yale-Loehr’s partner)
“Advanced Issues in EB-5 Investment Practice”
Mr. Klasko (discussion leader)
Ms. Danielson
“Ethical Issues in an Evolving World”
Greg Siskind (Lynn Susser‘s partner)
“When Can You Use the H-2B and H-2A Visas: Don’t Leave Them Out on the Range”
Loan Huynh (Ms. Danielson’s partner) (discussion leader)
EB5 Investors Magazine has released its list of top attorneys who represent EB-5 immigrant investors, project developers, and regional centers. Several ABIL members and related attorneys are included:
- Charles Foster (Partner, Foster LLP)
- Rohit Kapuria (Resident Attorney, Klasko Immigration Law Partners, LLP’s Chicago office)
- Klasko
- Carolyn Lee (Partner, Miller Mayer’s Immigration practice group)
- Daniel Lundy (Partner, Klasko Immigration Law Partners, LLP)
- Paparelli
- Christian Triantaphyllis (Associate Attorney, Foster LLP)
- Greg White (Partner, Seyfarth Shaw LLP)
- Wolfsdorf
- Yale-Loehr
Mark Ivener recently co-authored an article, “International Investors & California: EB-5 Visas/California Taxes,” which was published on May 11, 2016, in California CEO Business News & Information.
Robert Loughran was quoted in Law360 on May 20, 2016, in “E-Verify May Be More Trouble Than Ease for Some Employers.” Commenting on the staffing consequences for employers of E-Verify, he noted, “In times of low unemployment, they keep on getting tentative nonconfirmations [in E-Verify], and they can’t get workers. So, they have open positions that they can’t fill.”
Raquel Burson, an attorney with Foster LLP, was quoted in Law360 on May 26, 2016, in “4 Things To Know About Travel for the Rio Olympics.” Noting that people arriving on work visas may face delays when trying to complete their required registrations with the Brazilian police, she said, “We are already telling our clients that we expect that the federal police will concentrate their efforts to provide assistance…at the airports and for security of the country during the Olympic Games.”
Mr. Mehta has published two new blog entries. “The B-1 Visa: Trap for the Tailor, Bricklayer and Tesla Motors” “USA v. Olivar: Conspiracy To Commit Acts Prior To Naturalization Can Still Result In Revocation Of Citizenship”
Mr. Yale-Loehr will speak at two events on June 10, 2016, as part of the Cornell University reunion:
- 11 am to noon: Lawyers in the Best Sense: Social Justice, Human Rights, and Legal Access. Members of the Cornell Law School faculty will discuss activities and initiatives based at Cornell Law School on human rights, social justice, and legal access around the globe.
- 1-2 pm: Panel discussion on Immigration, Migration, and Refugees, including the U.S. immigration and refugee systems, current problems, and what the Congress and the next president can do to fix them.
Both events will be live streamed.
Mr. Yale-Loehr spoke on “Our Broken Immigration System and How To Fix It” at the Cazenovia Forum on Friday, June 3, 2016, in Cazenovia, New York. An article about the presentation.
Mr. Yale-Loehr was quoted in an article in Law360 about Torres v. Lynch, decided by the Supreme Court on May 19, 2016.
12. 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
