Headlines:
1. Supreme Court Strikes Down Most Provisions of Arizona’s Immigration Enforcement Law – The Supreme Court struck down most provisions of Arizona’s 2010 immigration-related law, allowing to stand one provision requiring police to verify immigration status in certain circumstances.
2. Continued Heavy Demand in Employment Second Preference Category Leads to Worldwide Cut-Off Date for July – Continued heavy demand for visa numbers in the employment second preference category has required the establishment of a January 1, 2009, worldwide cut-off date for July.
3. DOL Announces Address Change for Filing, Processing Temporary Labor Certifications – Effective August 2, 2012, the Chicago National Processing Center address and contact info will change.
4. Grassley Letter Challenges President’s Authority To Implement Deferred Action – Sen. Charles Grassley (R-Iowa) and a group of other Republicans are challenging President Obama’s authority to implement deferred action and work authorization for certain children of undocumented persons based on prosecutorial discretion.
5. Georgia Technology Company Agrees to Pay $741,288 in Back Wages to 73 H-1B Workers – Semafor Technologies LLC has agreed to pay 73 employees $741,288 in back wages following an investigation by the Department of Labor’s Wage and Hour Division that found violations of the H-1B visa program.
6. Multi-State Prostitution Ring Dismantled – The perpetrators acquired women to act as prostitutes, on many occasions smuggling them into the United States from Mexico and Central America.
7. Appeals Court Denies Petition for Review, Upholds BIA Decision of Abandonment of LPR Status – The U.S. Court of Appeals for the Sixth Circuit denied the petition for review, holding that intent alone is insufficient to maintain LPR status and that her extended periods in Pakistan supported the BIA’s finding that she had abandoned her status.
8. ABIL Global: Belgium – Belgium is working on implementation of the EU Blue Card directive; there is an increasing focus on compliance; and a potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions.
9. New Publications and Items of Interest – New Publications and Items of Interest
10. Member News – Member News
11. Government Agency Links – Government Agency Links
Details:
1. Supreme Court Strikes Down Most Provisions of Arizona’s Immigration Enforcement Law
On June 25, 2012, the Supreme Court struck down most provisions of Arizona’s immigration-related law, allowing to stand one provision requiring police to verify the immigration status in certain circumstances of those they have stopped, detained, or arrested and whom they suspect may not be in the United States legally. The provisions that were struck down included requiring immigrants to carry documentation, making seeking or engaging in unauthorized work a state misdemeanor crime, and allowing warrantless arrests of suspected undocumented persons who may have committed a removable offense. The Court noted that the federal government is responsible for immigration and removal.
Five other states (Alabama, Georgia, Indiana, South Carolina, and Utah) have similar laws, which may be challenged following the Supreme Court outcome.
2. Continued Heavy Demand in Employment Second Preference Category Leads to Worldwide Cut-Off Date for July
Continued heavy demand for visa numbers in the employment second preference category has required the establishment of a January 1, 2009, worldwide cut-off date for the month of July. The Department of State’s Visa Bulletin for July says that this action has been taken in an effort to hold number use within the annual numerical limit. “Should there be an increase in the current demand pattern, it may be necessary to make this category completely ‘unavailable’ prior to September 30, 2012,” the bulletin warns.
The China and India employment second preference categories are already unavailable, and will remain so for the remainder of the fiscal year.
3. DOL Announces Address Change for Filing, Processing Temporary Labor Certifications
Effective August 2, 2012, the Chicago National Processing Center (NPC) address and contact info will change:
- Old Address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 536 South Clark Street, 9th Floor, Chicago, IL 60605-1509.
- New Address: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, 11 West Quincy Court, Chicago, IL 60604-2105; telephone: (312) 886-8000; facsimile: 312-353-8830.
- New Address in connection with fees: The following address is to be used for all invoices/fees submitted in connection with the H-2A program: U.S. Department of Labor, Employment and Training Administration, Office of Foreign Labor Certification, Chicago National Processing Center, P.O. Box A3804, Chicago, IL 60690-A3804.
On August 2, 2012, the Chicago NPC is expected to be fully functional in the new location. For three weeks after that date, the Chicago NPC will receive via courier all written correspondence submitted to the former address. On August 23, 2012, the courier will cease to operate and all submissions to the former address of the Chicago NPC will be returned to the sender. The address above for the collection of H-2A fees should be used beginning on August 2.
4. Grassley Letter Challenges President’s Authority To Implement Deferred Action
Sen. Charles Grassley (R-Iowa) and a group of other Republicans sent a letter on June 19, 2012, challenging President Obama’s authority to implement deferred action and work authorization for certain children of undocumented persons based on prosecutorial discretion. The Obama administration announced the new program in a directive from the Secretary of Homeland Security, Janet Napolitano, issued on June 15. “Not only do we question your legal authority to act unilaterally in this regard, we are frustrated that you have intentionally bypassed Congress and the American people,” the letter states.
The letter also expresses concerns that the directive allows individuals under the age of 30 to obtain work authorization, citing the Bureau of Labor Statistics in noting that the unemployment rate for young adults aged 16 to 24 has been nearly 17 percent for the past year. The letter states that “[i]t is astonishing that your administration would grant work authorizations to illegal immigrants during this time of record unemployment.”
The letter poses a number of “serious questions” and asks for responses and “any relevant documentation related to this directive” by July 3, 2012.
5. Georgia Technology Company Agrees to Pay $741,288 in Back Wages to 73 H-1B Workers
Semafor Technologies LLC, a Norcross, Georgia, technology company, has agreed to pay 73 employees $741,288 in back wages following an investigation by the Department of Labor’s Wage and Hour Division that found violations of the H-1B visa program. The company specializes in software development, on-site/off-site application outsourcing, infrastructure, consulting, and product development services.
6. Multi-State Prostitution Ring Dismantled
Gregorio Hernandez-Castilla of Indianapolis, Indiana, was sentenced recently to 41 months in prison after pleading guilty to conspiring to operate an interstate prostitution ring with his two brothers. The prosecution was the result of an extensive investigation by multiple law enforcement agencies.
The three brothers headed the Hernandez-Castilla criminal organization, which had been operating for a number of years in the Indianapolis area, largely under the direction of Jose Luis Hernandez-Castilla. The brothers would acquire women to act as prostitutes, on many occasions smuggling them into the United States from Mexico and Central America. Once here, many were often without any means of support, and thus would engage in prostitution to pay off debts they owed the brothers for subsidizing their entry into the country.
In addition, the brothers directed another group of individuals who acted as local managers by running prostitution operations out of apartments and houses located throughout Indianapolis and in surrounding states, including Michigan, Illinois, and Ohio. The women engaged in prostitution were rarely allowed to stay in any one location for more than a week, and the operation employed numerous drivers who would transport the women from one site to another on a regular basis.
The organization operated almost exclusively within the Hispanic community, the Department of Homeland Security reported, advertising its services through the distribution of business cards bearing advertisements and telephone numbers for auto repair or western wear outfitters. These business cards were known within the Hispanic community as contact numbers for arranging appointments with prostitutes.
7. Appeals Court Denies Petition for Review, Upholds BIA Decision of Abandonment of LPR Status
In Lateef v. Holder, the petitioner argued that despite multiple long absences from the United States, she did not intend to abandon her lawful permanent resident (LPR) status, which also served as the foundation for her husband’s and child’s entry into the United States. The U.S. Court of Appeals for the Sixth Circuit denied the petition for review, holding that intent alone is insufficient to maintain LPR status and that her extended periods in Pakistan, including her final trip that lasted a year and three months, supported the BIA’s finding that she had abandoned her LPR status. The court also noted that the petitioner had lied in one instance to border officials about the date of her last visit to the United States.
Circuit Judge Jane B. Stranch dissented, noting among other things that errors by U.S. immigration officials were responsible for at least some of the delays in her returning, and that the petitioner’s daughter in Pakistan had emotional and physical problems that compelled her to spend time in Pakistan to care for her.
8. ABIL Global: Belgium
Belgium is working on implementation of the European Union (EU) Blue Card directive; there is an increasing focus on compliance; and a potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions.
Work Permits; Implementation of the EU Blue Card Directive
The Belgian work permit system is a very business-friendly model in practice. The “regular” work permit, with a resident labor test, has become very rare in the corporate immigration context. “Fast-track” work permits, without a resident labor test, can be obtained quite fast, within two to three weeks after the date of filing of the application.
The economic recession has not led to drastic changes to the Belgian work permit system. However, one protective measure, regarding Bulgarian and Romanian nationals, should be mentioned:
- In principle, European Union (EU) nationals may work in Belgium without work permits, on the basis of the right of free movement of workers.
- For Bulgaria and Romania, which joined the EU on January 1, 2007, restrictions on this right of free movement of workers were maintained during an initial transition term until the end of 2008. That was prolonged for another three years, until December 31, 2011. The Belgian government has decided to continue the restrictions until December 31, 2013. As a rationale for this decision, the government explicitly referred to the expected economic recession in 2012/2013 as well as to similar decisions of neighboring countries to maintain the restrictions.
In other developments, the Belgian Parliament and the Minister of Employment are currently working on implementation of the EU Blue Card Directive.
The available texts indicate that the Blue Card will exist alongside the current fast-track work permit B for highly skilled employees. The salary threshold for a Blue Card in 2012 will probably be €49,995, which is higher than the current threshold for a highly skilled work permit B (€37,721 for 2012).
The Belgian authorities will probably choose not to take professional experience into account to prove “higher professional qualifications,” but a higher education will be required, on condition that the studies needed to acquire it lasted at least three years. Belgium will probably not apply numerical limits.
Focus on Compliance
New Code on Labour and Social Security Criminal Law. A new Code on Labour and Social Security Criminal Law took effect on July 1, 2011. It mainly codifies existing compliance rules with regard to labor and social security law-related issues, including employment of foreigners, but also creates new compliance rules.
Unauthorized/illegal employment of a foreigner who is not entitled to live in Belgium more than three months is among the infringements that are considered very serious (“type 4” infringements).
The potential penalties for such infringement include a jail term of six months to three years and/or a criminal fine between €3,600 and €36,000 per employee, with a maximum of €3,600,000 (€36,000 x 100). Furthermore, the employer may be prohibited from operating the business for a limited time, between one month and three years. The court may also order closure of the company for the same duration.
The same two accompanying penalties (prohibition from operating the business and closure of the company for a limited time, between one month and three years) may be imposed upon “HR advisors,” largely defined as professionals providing advice or help to one or more employers or employees with regard to the carrying out of obligations as sanctioned by the Code, either for their own account or within an entity. According to some comments to the Code, HR consultants and payroll personnel are included in this category, but probably not lawyers or notary publics (although they may risk being an accomplice to an infringement). The courts can only impose these two accompanying penalties if they are deemed necessary to stop an infringement or to avoid repeat offending, provided that they are in proportion with overall socio-economic interests.
If the Public Prosecutor determines that this infringement does not justify criminal prosecution, an administrative fine may be imposed, ranging between €1,800 and €18,000 per employee, with a maximum of €1,800,000 (€18,000 x 100).
The Belgian authorities are working on implementation of the EU Illegals Employment Directive. A first proposal of an Act has been prepared but the text is not yet publicly available. The new Act may include the following:
- The basic principle is that employers cannot employ a person who is not an EU citizen, who does not enjoy the right of free movement, and who is present on the Belgian territory, without that person meeting the requirements for stay or residence in Belgium. The employer must check the residence documents of the potential employee before employment. Furthermore, the employer must keep a copy of these documents available for inspection and notify the competent authorities of the start of the employment.
- The new Act provides effective, proportionate, and dissuasive sanctions against employers who employ unauthorized third-country nationals in Belgium. These include general financial and criminal sanctions. The employer may also be liable to pay any outstanding remuneration to the employee. Finally, the employer may be required to pay taxes and social security contributions to Belgium.
- If the infringing employer is a direct subcontractor, the contractor will also be severally liable, unless the subcontractor states in writing that it does not employ unauthorized employees. If the infringing employer is an indirect subcontractor, the contractor can only be severally liable after notification by the social inspection services and only up to the salary as of the date of such notification.
- Employees may exercise their rights before the court, as may representative organizations for employers or employees and the Centre for Equal Opportunities and Opposition to Racism (an independent government agency that fights discrimination and racism and that assists victims).
Draft Act on increased coordination of inspection of illegal employment and fraud. On June 22, 2012, the Belgian federal government agreed to a draft Act that approves a cooperation agreement between the inspection departments on federal (Belgium) and regional (Brussels, Flanders, and Wallonia) levels. According to a press release on June 23, 2012, the aim is to enhance the cooperation between the inspection departments at the different levels “primarily in order to inspect the employment of foreign employees.”
Potential Change: Transfer of Legislative Power From Federal to Regional Level
A potential future change relates to the transfer of legislative power regarding work permits from the federal level to the regions. At present the regions (Brussels, Flanders, and Wallonia) process work permits on the basis of federal legislation. The coalition agreement of the federal government and the general policy statement of the federal Minister of Employment both mention the transfer of legislative authority regarding economic migration to the regions.
No specific steps have been taken yet to initiate this process. It is not yet clear whether, when, and to what extent the transfer of legislative power will be implemented. This could lead to different rules for Brussels, Flanders, and Wallonia.
9. New Publications and Items of Interest
Prevailing wage FAQs. The Department of Labor has posted new and revised FAQs for the prevailing wage program. Topics include occupation-specific issues, the documentation of an affiliated or related nonprofit entity, and the issuance of hourly wages. These FAQs are available on the FAQs page of the Office of Foreign Labor Certification website under the heading “Prevailing Wage” (PERM, H-2B, H-1B, H-1B1, and E-3).
Trainings on prevailing wage requirements for federal contracts. The Department of Labor’s Wage and Hour Division will host four free trainings on the rules concerning prevailing wage requirements for federal contractors, contracting officials, unions, workers, and other interested parties. The trainings will be in Los Angeles (July 24-26); Miami (July 31-August 2); Philadelphia (July 10-12); and Seattle (August 7-9). Space is limited. To attend, e-mail whdpwc@dol.gov and include the participant’s name, title, organization, and e-mail address, as well as the location of the training desired. A Department of Labor representative will advise whether space remains available. The announcement.
Several ABIL members co-authored and edited the new publication, Global Business Immigration Practice Guide, released on May 31, 2012, 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.
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 issue.
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.
Green Card Stories. The immigration debate is boiling over. Americans are losing the ability to understand and talk to one another about immigration. We must find a way to connect on a human level. Green Card Stories does just that. The book depicts 50 recent immigrants with permanent residence or citizenship in dramatic narratives, accompanied by artistic photos. If the book’s profilees share a common trait, it’s a mixture of talent and steely determination. Each of them overcame great challenges to come and stay in America. Green Card Stories reminds Americans of who we are: a nation of immigrants, from all walks of life and all corners of the earth, who have fueled America’s success. It tells the true story of our nation: E pluribus unum–out of many, one.
Green Card Stories has recently been named a Nautilus book award silver medal winner in the Conscious Media/Journalism/Investigative Reporting category, and won a silver medal in the Independent Book Publishers Association’s Benjamin Franklin Award in the multicultural category. The book also won a Bronze Medal in the Independent Publisher’s “IPPY” Awards in the Multicultural/Nonfiction Adult category and an honorable mention for the 2012 Eric Hoffer Book Award. Ariana Lindquist, the photographer, won a first-place award in the National Press Photographers Association’s Best of Photojournalism 2012, in the Non-Traditional Photojournalism Publishing category.
For more information or to order, visit Green Card Stories.
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available HERE.
10. Member News
H. Ronald Klasko was quoted on the number of Asian immigrants in the United States, in the June 21, 2012, Philadelphia Inquirer.
Charles Kuck was quoted recently by Public Broadcasting Atlanta, CNN, Bizjournals.com, the Atlanta Journal-Constitution, KSRO, and Broken Border Patrol.
Cyrus Mehta has published several new blog entries. “Dreaming in Arizona: Can Prosecutorial Discretion Co-Exist With Show Me Your Papers?” “Deferred Action: The Next Generation”
Cyrus Mehta was a Discussion Leader, Third Party Placements panel, at the American Immigration Lawyers Association’s Annual Conference in Nashville, Tennessee, on June 15, 2012.
Cyrus Mehta was also quoted in the media recently, at ILW.com, Fronteras, Business Standard, and Economic Times.
Angelo Paparelli has published several new blog entries. “Immigration Quibbles and Bites: The Fortnight in Review” “Immigration Lawyers Arguing: ‘Can I Work from Home for a Foreign Employer?” “The President Has Spoken – Can DHS Make the Immigration DREAM Come True?”
Nick Rollason spoke on the global immigration aspects of the United Kingdom Bribery Act at the American Immigration Lawyers Association’s Global Forum in Nashville, Tennessee, on June 13, 2012.
Stephen Yale-Loehr was quoted recently on the Supreme Court’s ruling on Arizona’s immigration-related law, by Voice of America, WNYC, La Opinión, Contra Costa Times and other California papers. He was also interviewed on the BBC international news hour radio program, NPR’s All Things Considered, several radio stations, and one TV station.
Stephen Yale-Loehr and an individual included in the book Green Card Stories will speak on the Out of Bounds Radio Show on Thursday, July 5 at 7 pm EDT on WEOS-FM (90.3 & 89.7 Geneva region) and on Sunday, July 8 at 11:30 am EDT on WSKG-FM (89.3 Binghamton, 90.9 Ithaca, 91.7 Cooperstown/Oneonta, 91.1 Corning/Elmira, 88.7 Hornell/Alfred).
Four ABIL members and their partners are on the Human Resource Executive list of The Nation’s 20 Most Powerful Employment Attorneys – Immigration: H. Ronald Klasko, Angelo Paparelli, Julie Pearl, and Bernard Wolfsdorf.
11. 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
