Headlines:
1. USCIS Expands Site Visits To Review of L-1 Petitions – The agency is reviewing extensions of L-1 petitions and L-1 job duties and salaries to determine whether they are consistent with the L-1’s classification.
2. H-1B Alert: Filing Starts April 1 for Next Fiscal Year – This past fiscal year, H-1B numbers were exhausted within the first five days of filing. The Alliance of Business Immigration Lawyers (ABIL) anticipates that the numbers will run out quickly again this year.
3. Half a Million Companies Now Participate in E-Verify, USCIS Announces – E-Verify has experienced significant growth.
4. USCIS Adds Countries to Participation in H-2A and H-2B Programs – Austria, Italy, Panama, and Thailand have been added to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs.
5. Federal Judge Rules in Favor of Stanford Student on ‘No-Fly’ List – After a long legal battle, a federal judge ruled that a Malaysian Stanford student is entitled by due process to a remedy that requires the government to “cleanse and/or correct” its lists and records of mistaken information.
6. ABIL Global: Australia – The Australian government has revised labor market testing requirements in the 457 visa program.
7. New Publications and Items of Interest – New Publications and Items of Interest
8. Member News – Member News
9. Government Agency Links – Government Agency Links
Details:
1. USCIS Expands Site Visits To Review of L-1 Petitions
USCIS’s Fraud Detection and National Security (FDNS) Directorate has expanded its employer site visits to include review of L-1 post-adjudication petitions. Recent reports indicate that the agency is reviewing extensions of L-1 petitions and L-1 job duties and salaries to determine whether they are consistent with the L-1’s classification as an executive or manager (L-1A) or specialized knowledge worker (L-1B).
USCIS may conduct announced or unannounced site visits as part of the visa petition process. Employers have been reporting that the FDNS inspectors’ queries are similar to those made in H-1B site visits, particularly about whether wages are appropriate for the visa application, visa category, work location, hours, job duties, title, and experience of the employee. The employee may be questioned directly about his or her job duties.
FDNS’s site visits are funded by the $500 anti-fraud fee paid with H-1B and L-1 petitions. Until recently, such compliance audits have primarily involved H-1B employers. More than 17,000 such visits occurred in FY 2011, which was an increase over 2010.
USCIS’s Office of Inspector General in August recommended, among other things, that USCIS make a site visit a requirement before extending a one-year new office L-1 petition. USCIS concurred and said it expected to begin conducting post-adjudication domestic L-1 compliance site visits in FY 2014.
2. H-1B Alert: Filing Starts April 1 for Next Fiscal Year
Congress sets a limit on the number of H-1B visas available each year. This past fiscal year, H-1B numbers were exhausted within the first five days of filing. The Alliance of Business Immigration Lawyers (ABIL) anticipates that the numbers will run out quickly again this year.
If U.S. Citizenship and Immigration Services (USCIS) receives more petitions than it can accept, it will use a lottery system to randomly select the number of petitions filed during that period to reach the numerical limit. USCIS did this last year. The agency will reject petitions that are subject to the cap but not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.
Every time an employer hires an individual for a specialty occupation, an H-1B number must be available. (An exception arises where the individual is already with another employer in H-1B status, but this employer cannot be a university/college or a nonprofit government research organization.) When numbers run out, the employer must wait until the next fiscal year to file for an H-1B. In some cases, there may be no other nonimmigrant visa option for the individual and the individual may have to leave the U.S. or, at least, not be able to work for the employer until a year later.
While the H-1B numbers for the next fiscal year do not become available again until October 1, 2014, employers may file petitions to request numbers as early as six months in advance, beginning on April 1, 2014. That date signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached. The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (master’s or higher) from a U.S. university.
As in past years, some foreign nationals are not subject to the H-1B cap, including individuals who already have been counted toward the cap in a previous year and have not been outside the United States subsequently for one year or more. Also, certain employers, such as universities, government-funded research organizations, and some nonprofit entities are exempt from the H-1B cap. All other employers should be aware of the H-1B cap.
ABIL encourages employers to review their hiring needs and determine whether they should initiate H-1B processing for anticipated hires, or even recent hires in other nonimmigrant status now.
You should consider filing an H-1B petition this April if:
- You want to hire an individual who is not in H-1B status already.
- You are hiring an individual who is already in H-1B status but is currently employed with a college/university (this situation requires a new H-1B number).
- You are hiring an individual who is already in H-1B status but is with a nonprofit government research organization (this situation requires a new H-1B number).
- Your employee is in F-1 student status.
- Your employee is in L-1B status and is considering seeking legal permanent residence in the United States.
- Your employee is in another nonimmigrant status and may want to seek legal permanent residence in the United States.
ABIL recommends that clients keep their ABIL attorney apprised of all new hires needing H-1B status before October 1, 2014. Examples would include F-1 students hired with optional practical training that expires before April 1, 2014, or current L-1B nonimmigrants who will have spent five years in that status as of any date before October 1, 2014. Contact your ABIL attorney now if you have any questions or would like to file an H-1B petition.
3. Half a Million Companies Now Participate in E-Verify, USCIS Announces
U.S. Citizenship and Immigration Services (USCIS) announced on January 23, 2014, that more than 500,000 companies now use E-Verify. Employers use the online E-Verify system to check an employee’s work authorization status. USCIS said that 98.8 percent of work-authorized employees are confirmed “instantly or within 24 hours, requiring no further employee or employer action.”
USCIS noted that its efforts to enhance the system’s security include agreements with select states’ departments of motor vehicles to ensure the authenticity of driver’s licenses that employees use as identity documents; Self Check, which allows workers to look up their own employment eligibility status and correct their records before they seek employment; and a program that locks Social Security numbers suspected of being misused for employment eligibility verification.
E-Verify has experienced significant growth since its establishment in 1996. Annual enrollments increased tenfold during the program’s first 16 years, from 11,474 in fiscal year (FY) 1996 to 111,671 in FY 2012. During FY 2013, employers used E-Verify more than 25 million times.
To commemorate the half-million-participant milestone, USCIS released “E-Verify for Business Leaders,” a video that introduces the program to prospective users. USCIS also updated its E-Verify website with “plain-language” content and easy-to-follow graphics.
4. USCIS Adds Countries to Participation in H-2A and H-2B Programs
U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security, in consultation with the Department of State, has added Austria, Italy, Panama, and Thailand to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year.
The notice listing the 63 eligible countries was published January 17, 2014, in the Federal Register.
5. Federal Judge Rules in Favor of Stanford Student on ‘No-Fly’ List
U.S. District Judge William Alsup of San Francisco, California, recently ruled that a Malaysian Stanford student’s legal rights were violated because she was wrongly put on the “no-fly” list nine years ago. The judge noted that the “government concedes that the plaintiff is not a threat to national security.” He said she is “entitled by due process to a … remedy that requires the government to cleanse and/or correct its lists and records of the mistaken information.”
Rahinah Ibrahim attempted to board a flight in 2005 to Hawaii from San Francisco International Airport, but was told she was on the no-fly list. After a two-hour ordeal at the airport, during which she was questioned and denied any connection to terrorism, an agent of the Department of Homeland Security told her that her name had been removed from the no-fly list and she was free to fly to Hawaii. She then flew from Hawaii for a visit home to Malaysia. But when she tried to return via Kuala Lumpur International Airport two months later, she was stopped and the U.S. Embassy said her U.S. student visa was cancelled due to a suspected connection to terrorism. An eight-year legal battle followed, during which she was unable to return to the United States. She finished her Stanford education remotely.
Her attorneys filed suit seven years ago against several agencies, including the Federal Bureau of Investigation and the Department of Homeland Security. Government attorneys have been secretive, citing national security issues, Judge Alsup noted, and it was difficult to gain access to information. “It has gone so far as even to redact from its table of authorities some of the reported case law on which it relies! This is too hard to swallow,” Judge Alsup noted.
The American Civil Liberties Union has filed suit in a similar case, representing 13 U.S. citizens who were blocked from air travel after a failed bombing attempt on Christmas Day 2009. The 13 citizens were not told why they were blocked or how to remove their names from the list. ACLU attorney Nusrat Choudhury said, “The Constitution prohibits the government from smearing people as suspected terrorists due to an entirely secret process, then not giving them a fair chance to defend themselves.”
BACKGROUND ON THE IBRAHIM CASE AND SIMILAR CASES
6. ABIL Global: Australia
In June 2013, the previous government of Australia decided to undo decades of progressive reform and introduce Labour Market Testing (LMT) into the 457 program. That government was defeated in September 2013 and the new government has substantially watered down the LMT regime with amendments passed on November 23.
The subclass 457 visa is the most commonly used visa to sponsor overseas skilled workers to work in Australia temporarily. Subclass 457 is uncapped and driven by employer demand. This generally means that employers will sponsor overseas workers more in times of high economic growth and low unemployment.
An application for approval of sponsorship must be accompanied by evidence in relation to LMT, unless the employer is exempt from doing so. Legislation specifies the manner in which such testing is to be carried out as well as the period in which LMT must have been undertaken. It also sets requirements relating to the sponsor’s attempts to recruit local labor. However, the November amendments provide for substantial exemptions from the LMT requirements.
The first such exemption provides that LMT is not required if it would be inconsistent with Australia’s international trade obligations, which fall into two categories:
- World Trade Organization General Agreement on Trade in Services (WTO-GATS) commitments
- Free trade agreement commitments
Consequently, sponsorship of citizens from WTO member countries would not require LMT. Similarly, intra-company transferees to Australia from a business established in a WTO country are exempt from LMT.
In addition to exemptions based on international trade agreements, sponsorship of executives and senior managers are exempt, as are specialists with two years of employment in Australia. Sponsors are also exempt from LMT for employees in positions that require tertiary qualifications. However, certain occupations cannot be exempted. The current list of occupations in that category includes a range of highly qualified engineers and nurses.
Finally, a sponsor may be exempt from LMT in the case of major disaster in Australia.
7. New Publications and Items of Interest
Immigration enforcement actions in FY 2012. The Department of Homeland Security has released “Immigration Enforcement Actions: 2012.” The report presents information on the apprehension, detention, return, and removal of foreign nationals in fiscal year 2012.
Key findings include:
- CBP determined that 194,000 foreign nationals were inadmissible.
- DHS apprehended 643,000 foreign nationals; 70 percent were citizens of Mexico.
- ICE detained approximately 478,000 foreign nationals, an all-time high.
- 230,000 foreign nationals were returned to their home countries without a removal order.
- DHS removed 419,000 foreign nationals from the United States. The leading countries of origin for those removed were Mexico, Guatemala, Honduras, and El Salvador.
- Expedited removal orders accounted for 163,000, or 39 percent, of all removals.
- Reinstatements of final orders accounted for 149,000, or 36 percent, of all removals.
- ICE removed 199,000 known criminal aliens from the United States, an all-time high.
Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
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.’
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or Nicole.hahn@lexisnexis.com.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL Blog.
8. Member News
Mark Ivener recently provided EB-5 immigration advice on due diligence. VIDEO
Charles Kuck spoke on Strategies for E-1 and E-2 Investors at the American Immigration Lawyers Association’s Mid-Year Conference in Grand Cayman on January 24, 2014.
Robert Loughran co-wrote a chapter and was a discussion leader on “Establishing New Office Intracompany Transfer Ls and the Path to Permanent Residency” at the American Immigration Lawyers Association’s Mid-Year Conference in Grand Cayman on January 24, 2014.
Mr. Loughran was quoted on January 9, 2014, by the Houston Chronicle on the impact of a December 31, 2013, federal court decision clarifying that neither probable cause nor reasonable suspicion was required for U.S. border agents to seize, inspect, and copy smartphones, laptops, tablets, or any other form of electronic device in the possession of an arriving traveler, including a U.S. citizen.
Cyrus Mehta has authored or co-authored several new blog entries. “GOP Principles on Immigration—A Path to Legal Status” “Top Ten Posts on the Insightful Immigration Blog in 2013” “One Step Forward, Two Steps Backwards: Immigration Benefits for Same Sex and Domestic Partners in India”
Angelo Paparelli has authored or co-authored several new blog entries. “Why Are Immigration Lawyers So Happy?” “Immigration Voices: Egads! I-9 Questions That Keep Me Up at Night”
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
