Newsletter

February 1, 2012

Headlines:

Litwin Law Update – There have been a number of recent changes and updates in regard to immigration laws. This newsletter will discuss a number of them:

China, India Visa Number Priority Cut-Off Dates Move Forward – The China and India cut-off dates continue to move forward, in some cases at a rapid rate.

Justice Dept. Settles with University of California San Diego Medical Center – The Department had alleged that the medical center subjected newly hired non-U.S. citizens to excessive demands for documents to verify their employment eligibility.

USCIS Seeks Comments on Draft L-1 Templates – In addition to comments on the individual draft templates, USCIS also seeks stakeholder input on broader issues.

USCIS Considers Allowing Provisional Waivers for Immediate Relatives – USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers before departing the United States for consular processing of their immigrant visa applications.

DOS Launches 90-Day Pilot Program Allowing Online Passport Card Applications – The U.S. passport card costs $30 for current passport book holders, and is valid for land and sea travel to and from Canada, Mexico, the Caribbean, and Bermuda. It is not valid for international air travel.

DOJ's Office of Special Counsel Lists Employer Best Practices During Worksite Enforcement Audits – The Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices released do's and don'ts for employers facing ICE audits.

U.S. Consulate in Chennai Stops Processing Immigrant Visa Petitions – The U.S. embassy in New Delhi and U.S. consulate in Mumbai are now the only acceptance centers in India for immigrant visa applications.

USCIS Announces Several Thousand EB-5 Green Cards Issued So Far in First Quarter of FY 2012, Releases Latest Stats – Between October and mid-January, 2,364 EB-5 green cards were issued. At that rate, over 9,000 EB-5 visas might be issued this fiscal year, which is very close to the statutory cap of 10,000.

AAO Denies RC Application to Build Resort Suites – The AAO found that the applicant's proposal was a marketing strategy to attract buyers for vacation suites rather than investors of capital in a new commercial enterprise.

USCIS Announces 58 Countries Whose Nationals Are Eligible for H-2A and H-2B Participation – In addition to the 53 countries currently on the list, Haiti, Iceland, Montenegro, Spain, and Switzerland were designated for the first time this year.

Also in this issue:

New Publications and Items of Interest

Government Agency Links

There have been a number of recent changes and updates in regard to immigration laws. This newsletter will discuss a number of them:

  • TIME TO THINK ABOUT FILING FY2014 H-1B PETITIONS

If you are interested in filing a new H-1B petition (as opposed to an extension of stay or change of employer petition), we are advising our clients that they must be prepared to file on March 29, 2013. This will ensure that the petition arrives on Monday, April 1st, 2013. Even though the approval will not be effective until October 1, 2013, the petition must be filed six months early.

Here is why we are telling our clients to send in their petitions for filing by March 29th, 2013. In 2006 and 2007, the total allocation of H-1B numbers was used up on the very first day of filing (April 1st). Due to the economic downturn that occurred in 2008, the numbers were much slower to be used and were not used up. Two years ago, the numbers were used by November 23rd, 2011. Last year, the numbers were used up by June 11, 2012. If this trend continues, I anticipate that all of the visa numbers will be used up in the first part of April if not the first day of April. The only way to be assured (as much as possible), that your H-1B petition will be approved is to file them on the first day. I say "as much as possible" since the Immigration Service has indicated that if more petitions are filed on the first day, than there are numbers available, a lottery will have to be held.

Therefore, it is quite possible, that even if the petition is filed on April 1st, the petition may not be successful unless it is chosen in the lottery.

As mentioned above, the cap only applies to new petitions. Petitions for foreign nationals which have already come under the cap and are now only being filed for change of employers or extensions of stay can be filed at any time.

At this time, employers should go over their hiring needs, and especially consider any employees who are on optional practical training (OPT), and, therefore, may need an H-1B visa in order to continue their employment. Do not be caught up in the last minute, frantic preparation and filing which many have been involved with in the recent years. If you have any questions, please contact our office at (650) 588-7100.

  • NEW IMMIGRANT VISA FEE

The U.S. Citizenship and Immigration Services (USCIS) will start charging $165 for overseas processing of immigrant visas.

The USCIS budget is based on its income from the filing fees. Because they cannot count on funds given to them by Congress, they must be sure to bring in enough money to finance their operations. As with many big businesses, USCIS is looking for ways to seek additional revenue. They have spotted one possible way: Overseas processing fees.

When a person files at an American Consulate for an immigrant visa, USCIS claims that they still have some involvement in the process, even though it is primarily handled by the Department of State (DoS). Because of their involvement, it has been concluded that they should charge a fee in order to be "reimbursed" for the time spent. Therefore, starting February 1st, 2013, a person who receives an immigrant visa from a United States consulate or embassy abroad will need to pay the new USCIS immigrant fee. The stated purpose for this fee is to recover the cost of processing that is performed in the United States after immigrant visa holders receive their visa packages from DOS and are admitted to the United States.

According to USCIS, applicants will not receive their green card until the required USCIS immigrant fee is paid. However, failure to pay does not affect the lawful status of the applicant. Applicants will have their passports stamped showing their lawful admission and permanent residence in the United States. This stamp is valid for one year. USCIS strongly advises new permanent residents to pay the immigrant fee as soon as possible in order to receive their green card in a timely manner.

  • NEW I-601 WAIVER

A new procedure has been established for persons who want to immigrate to the United States and need to file for a waiver due to the fact that they have been unlawfully present in the United States. This procedure will be available to immediate relatives beginning March 4, 2013. Immediate relatives are defined as spouse, parent or child of a U.S. citizen.

  • Why is this waiver needed?

Persons who had overstayed their status or had been unlawfully present in the United States, upon leaving the United States, incur what is known as the "three-year/ten-year bar". That is, if they have been unlawfully present for more than 180 days, once they leave they are not able to return to the United States for three years. If they had been unlawfully present for 365 days or more, they are barred from returning for ten years.

This bar attaches only when a person leaves the United States. Therefore, if a person is eligible to adjust his/her permanent residence in the United States, the bar never attaches. However, those who are unable to adjust in the United States (notably, those who have entered the United States without inspection) must leave the United States to attend an interview at an American embassy or consulate. When they leave the United States to attend this interview, the bar attaches. Once this happens, such persons cannot legally reenter the United States without obtaining a waiver.

  • The waiver process previously

In the past, a waiver could not be applied for until the person left the United States to attend the visa interview. Because the waiver process often takes a number of months, this meant that the spouses will be separated from each other or from their children or their parents for a long time. Because of the long delay, hardship would be caused to the applicant due to separation, employers not willing to wait, lack of income, etc. The new provisional unlawful presence waiver will alleviate these concerns.

  • Why is it called "provisional"?

The waiver is provisional since it only waives unlawful presence. It is not considered a full waiver, since there may be other grounds of inadmissibility. Sometimes, neither the foreign national nor the U.S. government is aware of these other grounds until the foreign national attends their interview.

  • What are the benefits of the provisional waiver process?

Many of the benefits are obvious: families will be able to stay together, separation will be minimal, and income from employment will be able to be maintained. However, it should be noted the waiver process does not give an individual lawful status in the United States. Neither will it protect from removal, nor will it guarantee that the visa will be issued, or remove the requirement to depart the United States for an interview.

  • Who is eligible for the provisional unlawful presence waiver?

Not everyone will be eligible to apply for under this process. The applicant must be in the United States and be the beneficiary of the approved immediate relative petition.

  • Who are not eligible for the provisional unlawful presence waiver?

Persons who are in deportation proceedings, or already ordered deported, or persons who cannot prove extreme hardship to their U.S. citizen spouse or parent are not eligible for a provisional unlawful presence waiver.

  • What happens if the provisional unlawful presence waiver is denied?

If the waiver application is denied, there is no appeal. Another request for waiver can be filed or the applicant can attend the interview and file a regular Form I-601 application. However, quite frankly, unless the applicant feels that he/she can overcome the ground for denial at the interview, much consideration will have to be given as to whether the applicant will, in fact, want to continue the process, thereby, leaving the United States and incurring the three-year/ten-year bar.

  • Should a person normally be eligible for a provisional unlawful presence waiver consult with an attorney?

Absolutely! This waiver, as with all waivers, is extremely complicated. The decision is discretionary and the criteria are very complex.

  • IS IT POSSIBLE FOR A FOREIGN NURSE WORK IN THE UNITED STATES?

For years, there has been an apparent shortage of nurses in the United States. Years ago, nurses would come to the United States on an H-1B visa. However, that stopped when the Immigration Service concluded that a bachelor's degree was not an absolute requirement in order to be a registered nurse.

Notwithstanding the numerous postings on the internet and ads saying that there are nursing jobs available, for the most part, it is difficult for foreign nationals to get visas to come to the United States. There are three ways that nurses may work in the United States on a temporary visa:

  • Be hired by a facility which qualifies under the H-1C category. - There are very few such facilities in the United States, they account for a very small number of jobs, and a person will be extremely lucky if he/she is accepted for employment at one of these facilities.
  • You are from Canada or Mexico. - Nurses from these two countries can enter the United States to work on a TN visa.
  • The position being offered requires a minimum of a bachelor's degree. - USCIS normally considers advanced practice nursing occupations to require a bachelor's degree and, therefore, qualify for an H-1 classification. These positions may require advanced practice certifications. Such positions as Clinical Nurse Specialist, Nurse Practitioners, Certified Nurse Anaesthetists, and Certified Nurse Midwives will usually qualify. In addition, the managers or administrators may also qualify. However, most foreign nationals looking for nursing positions in the United States neither qualify for, nor apply for, these positions.

Can a nurse immigrate to the United States? As mentioned earlier, there tends to be a shortage of nurses in the United States. Therefore, the immigration process for nurses, through employment, has been simplified. The Department of Labor has put "registered nurses" on a special list of occupations where there is a known shortage. Because of this, virtually any health facility that wants to file an immigrant visa petition for a nurse, knowing that it would be approved. But most do not! Why? The reason is that few of these hospitals or other healthcare facilities are willing to file the papers due to the fact that the process for a nurse to immigrate will take five or more years. Few hospitals will file petitions now for a person who will not be able to come to the United States and work for them for five years. Nor is there any guarantee that the nurse will still be available in five years and, since the process is costly and time consuming, most employers do not want to go through it.

This is a rather frank assessment. While there are still some doors that are open, and there are still possibilities for nurses to work in the United States or immigrate to the United States, in most cases, it is highly unlikely. Years ago, it was easier.

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: https://egov.uscis.gov/cris/processTimesDisplayInit.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/

Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

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China, India Visa Number Priority Cut-Off Dates Move Forward

The Department of State's Visa Bulletin for February 2012 shows that the China and India cut-off dates continue to move forward, in some cases at a rapid rate.

For February, the China employment-based second preference cut-off date has advanced a year to January 1, 2010. Also for February, the China employment-based third preference cut-off date is December 1, 2004, advancing a month and a half from January's cut-off date, when it was October 15, 2004. The third preference "Other Workers" category remains unchanged at April 22, 2003.

For February, the India employment-based second preference cut-off date is January 1, 2010, also advancing a year. Also for February, the India employment-based third preference cut-off date is August 15, 2002, advancing a week from January's cut-off date. The third preference "Other Workers" category for India in February is August 15, 2002, a two-week advance from January. The Visa Office explained in the February bulletin:

  • China and India: Reports from U.S. Citizenship and Immigration Services (USCIS) indicate that the rate of new filings for adjustment of status in recent months has been extremely low. This fact has required the continued rapid forward movement of the cut-off date, in an attempt to generate demand and maximize number use under the annual limit. Once the level of new filings or USCIS processing increases significantly, it will be necessary to slow or stop the movement of the cut-off. Readers are once again advised that an eventual need to retrogress the cut-off date is also a distinct possibility.

Also, in the January bulletin, the Visa Office noted:

  • The China and India Employment Second preference cut-off date has been advanced at a rapid rate in recent months. As previously noted, this action was intended to generate significant levels of new filings for adjustment of status at U.S. Citizenship and Immigration Services (USCIS) offices. USCIS has reported that the rate of new filings is currently far below that which they had anticipated, prompting an even more aggressive movement of the cut-off date for January and possibly beyond. While this action greatly increases the potential for an eventual retrogression of the cut-off at some point during the year, it also provides the best opportunity to utilize all numbers available under the annual limit.

The February 2012 bulletin notes that those categories with a "Current" projection will remain so for the foreseeable future. The Visa Office estimates that other employment-based categories not discussed above could also advance by up to one month per month in the near future, including the Worldwide, Mexico, and Philippines categories, depending on demand. The Visa Bulletin for February 2012 is available at https://travel.state.gov/content/visas/en/law-and-policy/bulletin/2013/visa-bulletin-for-july-2013.html.

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Justice Dept. Settles Document Discrimination Complaint Against University of California San Diego Medical Center

The Department of Justice reached an agreement on January 4, 2012, with the University of California San Diego Medical Center, resolving a complaint filed on December 6, 2011, alleging that the medical center failed to comply with proper employment eligibility verification processes for noncitizens authorized to work in the United States.

Specifically, the Department's complaint alleged that the medical center subjected newly hired non-U.S. citizens to excessive demands for documents to verify their employment eligibility but did not require the same of U.S. citizens.

Under the terms of the settlement agreement, the medical center agreed to implement new employment eligibility verification policies and procedures that treat all employees equally regardless of citizenship status. In addition, the medical center agreed to pay a civil penalty of $115,000, conduct supplemental training of its human resources personnel on their responsibilities to avoid discrimination in the employment eligibility verification process, and work with the Department to ensure compliance with proper employment eligibility verification processes across all University of California campuses, medical centers, and facilities.

The Department's announcement is available at http://www.justice.gov/opa/pr/2012/January/12-crt-006.html.

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USCIS Seeks Comments on Draft L-1 Templates

U.S. Citizenship and Immigration Services (USCIS) seeks comments on draft request for evidence (RFE) templates for Forms I-129: L-1 intracompany transferee (blanket petition, L-1A manager or executive, L-1A new office (first year), and qualifying relationship/ownership and control/doing business.

In addition to comments on the individual draft templates, USCIS also seeks stakeholder input on broader issues:

  • What are the top five issues you have with RFEs in the classifications that are currently under review?
  • What improvements can be made to the current RFE process in these classifications?
  • What types of evidence are frequently unavailable for these classifications when requested, and why? What evidence could be submitted as an alternative?

USCIS said it is also reviewing RFE templates for these categories:

  • E-12 Outstanding Professor and Researcher immigrants
  • E-13 Multinational Executive and Manager immigrants
  • F Student nonimmigrants
  • M Vocational Student nonimmigrants
  • J Exchange Visitor nonimmigrants
  • L Intracompany Transferee nonimmigrants
  • O Extraordinary Ability or Achievement nonimmigrants

Information and instructions are available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=95e92d40ee989210VgnVCM100000082ca60aRCRD&vgnextchannel=95e92d40ee989210VgnVCM100000082ca60aRCRD. The draft templates are available at http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=a6aafa4b01b38210VgnVCM100000082ca60aRCRD&vgnextchannel=a6aafa4b01b38210VgnVCM100000082ca60aRCRD.

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USCIS Considers Allowing Provisional Waivers for Immediate Relatives

U.S. Citizenship and Immigration Services (USCIS) announced on January 9, 2012, that it intends to change its current process for filing and adjudicating certain applications for waivers of inadmissibility filed in connection with an immediate relative immigrant visa application.

Specifically, USCIS is considering regulatory changes that will allow certain immediate relatives of U.S. citizens to request provisional waivers before departing the United States for consular processing of their immigrant visa applications. A person would be able to obtain such a waiver only if a Petition for Alien Relative, Form I-130, is filed by a U.S. citizen on his or her behalf and that petition has been approved, thereby classifying the person as an "immediate relative" for purposes of the immigration laws, and he or she demonstrates that the denial of the waiver would result in extreme hardship to the U.S. citizen spouse or parent "qualifying relative." The qualifying relative for purposes of the waiver is not necessarily the immediate relative who filed the immigrant visa petition on the relative's behalf.

USCIS's notice of intent, published in 77 Fed. Reg. 1040 (Jan. 9, 2012), is available at http://www.gpo.gov/fdsys/pkg/FR-2012-01-09/pdf/2012-140.pdf.

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DOS Launches 90-Day Pilot Program Allowing Online Passport Card Applications

On January 24, 2012, the Department of State's Office of Passport Services launched a 90-day pilot program allowing adult U.S. citizens living in the United States and Canada to apply for a passport card online. Those applying online are not required to mail in their current passport book. The wallet-sized U.S. passport card costs $30 for current passport book holders, and is valid for land and sea travel to and from Canada, Mexico, the Caribbean, and Bermuda. It is not valid for international air travel.

To participate in the program, applicants must currently possess a valid 10-year U.S. passport book with at least 12 months of validity remaining, upload an acceptable digital photograph, and make an online payment in U.S. dollars via Pay.gov. Applications accepted through the program will be subject to the same adjudication standards as in-person or mail-in applications.

The Department of State began producing the passport card in 2008 in response to travel document requirements imposed by the Western Hemisphere Travel Initiative. Since then, more than 4.5 million cards have been issued.

The notice is available at http://www.state.gov/r/pa/prs/ps/2012/01/182345.htm. To apply for the passport card using the online application, go to http://travel.state.gov/passport/ppt_card/ppt_card_5648.html.

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DOJ's Office of Special Counsel Lists Employer Best Practices During Worksite Enforcement Audits

The Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices has released the following do's and don'ts for employers facing audits by U.S. Immigration and Customs Enforcement (ICE):

DO:

  • Develop a transparent process for interacting with employees during the audit, including communicating with employees that the employer is subject to an ICE audit.
  • Provide all workers with a reasonable amount of time to correct discrepancies in their records identified by ICE. Treat all workers in the same manner during the audit, without regard to national origin or citizenship status. This means that all workers with like discrepancies who are asked to present additional documents are provided with the same timeframes and the same choice of Form I‐9 documents to present.
  • If your workers are represented by a union, inform the union of the ICE audit and determine whether a collective bargaining agreement triggers any obligations.
  • Inform employees from whom you seek specific information that you are seeking this information in response to an ICE audit.
  • Communicate in writing with employees from whom you seek information, and describe the specific basis for the discrepancy and/or what information you need from them. Follow the instructions on the ICE notice and the instructions for the Form I‐9 when seeking to correct Form I‐9 defects, including the Lists of Acceptable Documents and the anti‐discrimination notice.

DON'T:

  • Selectively verify the employment eligibility of certain employees based on their national origin or citizenship status based on the receipt of an ICE Notice of Inspection.
  • Terminate or suspend employees without providing them with notice and a reasonable opportunity to present valid Form I‐9 documents.
  • Require employees to provide additional evidence of employment eligibility or more documents than ICE is requiring you to obtain.
  • Limit the range of documents that employees are allowed to present for purposes of the Form I-9.
  • Treat employees differently at any point during the audit because they look or sound foreign, or based on assumptions about whether they are authorized to work in the U.S.

The list is available at http://www.justice.gov/crt/about/osc/pdf/publications/worksite_enforcement.pdf.

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U.S. Consulate in Chennai Stops Processing Immigrant Visa Petitions

As of January 1, 2012, the U.S. Consulate General in Chennai, India, is no longer processing immigrant visa petitions. The U.S. embassy in New Delhi and U.S. consulate in Mumbai are now the only acceptance centers in India for immigrant visa applications. Applicants currently in the process of petitioning for an immigrant visa may e-mail [email protected] for clarification of their status.

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USCIS Announces Several Thousand EB-5 Green Cards Issued So Far in First Quarter of FY 2012, Releases Latest Stats

The Department of State issued 2,364 EB-5 green cards between October 1, 2011, and mid-January 2012, U.S. Citizenship and Immigration Services (USCIS) announced at its quarterly EB-5 stakeholders meeting on January 23, 2012. At that rate, over 9,000 EB-5 visas might be issued this federal fiscal year, which is very close to the statutory cap of 10,000.

USCIS refused to discuss what it would do about pending EB-5 petitions if Congress fails to renew the regional center pilot program by September 30, 2012. Approximately 92 percent of I-526 petitions (Immigrant Petition by Alien Entrepreneur) filed each year are filed by investors in regional centers. Historically, about 80 to 85 percent of I-526 and I-829 EB-5 petitions are approved each year. The California Service Center (CSC) now has four teams of EB-5 adjudicators, an increase from one team a year ago. Despite the increased staffing, case adjudication times have not improved because of the increase in case filings.

USCIS also announced that it would defer to state determinations on what constitutes a targeted employment area (TEA) for EB-5 purposes. The agency will check the data behind states' methodology, however. USCIS did not say whether a single census tract may qualify as a geographic area. USCIS said that would be covered in written materials not yet available publicly, and referred stakeholders to its December 2009 memorandum for further details (available at http://www.uscis.gov/USCIS/Laws/Memoranda/Static%20Files%20Memoranda/Adjudicating%20of%20EB-5_121109.pdf).

USCIS acknowledged that many regional center applications are being held up at headquarters pending resolution of economic methodology issues. The USCIS hopes to resolve those issues soon. USCIS is analyzing all the I-924A forms submitted by regional centers and will draft a report that includes regional center-specific information sometime this year. The USCIS acknowledged growing pains in determining what constitutes a "shovel-ready" project for EB-5 purposes. It hopes to address this issue later this year when it revises the I-924 form to provide greater consistency.

USCIS also released its latest data on EB-5 filings and regional centers (RCs):

  • RC approvals continue to increase. As of January 28, 2012, there are 217 approved RCs operating in 40 states, including the District of Columbia and Guam.
  • The agency reported 41 initial RC proposal filings in the first quarter of fiscal year (FY) 2012, compared to 192 initial filings in all of FY 2011 and 110 initial filings in all of FY 2010. The number of amended RC proposal filings was 17 by the end of the first quarter; there were 86 filings received for all of FY 2011 and 42 filings received for all of FY 2010.
  • In the first quarter of FY 2012, the agency approved 14 of the 41 initial RC proposals and denied 22, an approval rate of 39 percent. In FY 2011, when USCIS approved 80 and denied 51, an approval rate of 61 percent. The approval rate of amended RC proposals in the first quarter of FY 2012 was 57 percent, with 4 approvals and 3 denials. By comparison, in FY 2011 USCIS approved 43 amended RC proposals and denied 7, an approval rate of 86 percent.
  • USCIS also reported significant increases in individual I-526s and I-829s (Petition by Entrepreneur to Remove Conditions). In the first quarter of FY 2012, USCIS received 1,293 I-526 petitions, compared to 3,805 for all of FY 2011. USCIS received 250 I-829 petitions in the first quarter of 2012. By comparison, USCIS received 2,345 I-829 petitions in all of FY 2011.
  • In the first quarter of FY 2012, the agency approved 1,076 I-526 petitions and denied 222, an approval rate of 83 percent, while in all of FY 2011 USCIS approved 1,563 and denied 11, an approval rate of 93 percent. USCIS approved 1,067 I-829 petitions and denied 46 in all of FY 2011, an approval rate of 96 percent.

The full list of RCs by state is available at http://www.uscis.gov/eb-5centers/.

The next USCIS stakeholder engagement meetings are scheduled for May 1, 2012 (general EB-5 discussion); July 26, 2012 (regional center discussion); and October 18, 2012 (general EB-5 discussion). See http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e0138e0732344310VgnVCM100000082ca60aRCRD&vgnextchannel=e0b081c52aa38210VgnVCM100000082ca60aRCRD for additional details on the engagement meetings.

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AAO Denies RC Application to Build Resort Suites

U.S. Citizenship and Immigration Services (USCIS) recently published an Administrative Appeals Office (AAO) decision affirming denial of a proposal for a regional center designation. The AAO found that the applicant's proposal was a "marketing strategy to attract buyers for vacation suites rather than investors of capital in a new commercial enterprise."

Specifically, the AAO said that the evidence incontrovertibly established that the applicant proposed that "investors" would purchase a vacation suite as either a "primary residence," "second home," or "investment property." The AAO affirmed the California Service Center director's determination that such a real estate purchase of a private residence, even if still under construction, "is not an at-risk investment of capital that can be credited with direct or indirect job creation." The purchase of individual residential suites by alien "investors," even if concentrated in one resort complex, is also not the type of "pooled investment" concept Congress envisioned for the regional center program, the AAO noted. In summary, the AAO said:

  • The applicant has proposed an investment plan whereby alien investors would make independent, passive, personal real estate investments that garner them no equity ownership in a new commercial enterprise. Instead of presenting a plan for a pooled equity investment of capital into a new commercial enterprise, the applicant has merely put forth a marketing strategy to attract sufficient buyers to fund later phases of development. This plan does not meet the letter or spirit of [the law and regulations] designed to encourage pooled investments in a new commercial enterprise benefitting a geographic region.

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USCIS Announces 58 Countries Whose Nationals Are Eligible for H-2A and H-2B Participation

U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security (DHS), in consultation with the Department of State, has identified 58 countries whose nationals are eligible to participate in the H-2A (temporary agricultural) and H-2B (temporary nonagricultural) programs for the coming year. Each country's designation is valid for one year from the date of publication.

USCIS generally may only approve H-2A and H-2B petitions for nationals of countries the Secretary of Homeland Security has designated as eligible to participate in the programs. USCIS may approve H-2A and H-2B petitions for nationals of countries not on the list if it is determined to be in the interest of the United States.

In addition to the 53 countries currently on the list, Haiti, Iceland, Montenegro, Spain, and Switzerland were designated for the first time this year.

Effective January 18, 2012, nationals of the following 58 countries are eligible to participate in the H-2A and H-2B programs: Argentina, Australia, Barbados, Belize, Brazil, Bulgaria, Canada, Chile, Costa Rica, Croatia, Dominican Republic, Ecuador, El Salvador, Estonia, Ethiopia, Fiji, Guatemala, Haiti, Honduras, Hungary, Iceland, Ireland, Israel, Jamaica, Japan, Kiribati, Latvia, Lithuania, Macedonia, Mexico, Moldova, Montenegro, Nauru, the Netherlands, Nicaragua, New Zealand, Norway, Papua New Guinea, Peru, Philippines, Poland, Romania, Samoa, Serbia, Slovakia, Slovenia, Solomon Islands, South Africa, South Korea, Spain, Switzerland, Tonga, Turkey, Tuvalu, Ukraine, United Kingdom, Uruguay and Vanuatu.

This new list does not immediately affect the status of beneficiaries who are currently in the United States in H-2A or H-2B status, unless they apply to change or extend their status.

The notice is available at http://www.gpo.gov/fdsys/pkg/FR-2012-01-18/pdf/2012-870.pdf.

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New Publications and Items of Interest

USCIS Ombudsman teleconference on L-1B "specialized knowledge" worker petitions. This teleconference on February 7, 2012, from 2 to 3 p.m. EST, presents an opportunity to learn about the experiences of employers filing L-1B nonimmigrant petitions with USCIS. The L-1B classification allows an employer to petition for an employee who has "specialized knowledge" of the employer's products, services, research, equipment, techniques, management, or other interests and its application in international markets, or expertise in the employer's processes and procedures, from a qualified affiliated entity outside the United States. The Ombudsman's Office says it would like to hear about employers' experiences with USCIS adjudications of "specialized knowledge" filings. Participants are encouraged to join this discussion by anonymously sharing their experiences during the teleconference. To register, RSVP to [email protected] and reference "L-1B Telecon" in the subject line of your e-mail. Participation in these teleconferences is anonymous. Comments, questions, materials, or suggestions regarding this topic should be directed via email to the Ombudsman's Office at [email protected]. The notice, along with links to "recaps" from recent teleconferences, is available at http://www.dhs.gov/files/programs/gc_1171038701035.shtm.

CRS reports: numerical limits on employment-based immigration, temporary protected status, free trade agreements, globalization and worker insecurity, Visa Waiver Program. The Congressional Research Service has released several new reports:

  • "Numerical Limits on Employment-Based Immigration: Analysis of the Per-Country Ceilings" notes that the overwhelming number of approved employment-based legal permanent resident (LPR) visas pending at the National Visa Center at the close of FY 2010 were those of professional and skilled workers—102,395. There were also 16,788 approved visas pending for unskilled workers. Another 6,738 visas were pending for those with advanced degrees. There were also 2,961 approved visas pending in the "extraordinary" category. Most of the approved I-485 petitions pending are for professional, skilled, and unskilled workers (114,442). There were 7,545 approved I-485 petitions pending in the "extraordinary" category and 45,573 approved I-485 petitions pending in the "advanced degree" category. The extent that these two sets of data overlap—and thus may be counting the same petitions twice—is not known, but substantial duplication is presumed to exist.

The report lists the top four countries in both the National Visa Center and USCIS data sets (in rank order): India, the Philippines, the Peoples' Republic of China, and Mexico. The data analyses suggest that the vast number of Indians may be waiting to adjust status in the United States, while the vast number of Filipinos may be waiting to immigrate from abroad. Those with approved pending cases from China seem to be more evenly split among new arrivals and those seeking to adjust status.

Some argue that the per-country ceilings are arbitrary, the report notes, and that employability has nothing to do with country of birth. Others maintain that the statutory per-country ceilings restrain the dominance of high-demand countries and preserve the diversity of the immigrant flows.

Legislation (H.R. 3012) to revise the per-country ceilings on LPRs passed the House on November 29, 2011.

The report is available at http://www.fas.org/sgp/crs/homesec/R42048.pdf.

  • "Temporary Protected Status: Current Immigration Policy and Issues" provides an overview of TPS and other forms of blanket relief. The report notes that the United States currently provides TPS or deferred enforced departure (DED) to over 300,000 foreign nationals from seven countries: El Salvador, Haiti, Honduras, Liberia, Nicaragua, Somalia, and Sudan. Liberians have had relief from removal for the longest period, first receiving TPS in March 1991 following the outbreak of civil war. The report is available at http://fpc.state.gov/c41253.htm .
  • "Free Trade Agreements: Impact on U.S. Trade and Implications for U.S. Trade Policy" says that free trade agreements (FTAs) raise important policy issues: Do FTAs serve or impede U.S. long-term national interests and trade policy objectives? Which type of an FTA arrangement meets U.S. national interests? What should U.S. criteria be in choosing FTA partners? Are FTAs a substitute for or a complement to U.S. commitments and interests in promoting a multilateral trading system via the World Trade Organization (WTO)? What effect will the expiration of the Trade Promotion Authority have on the future of FTAs as a trade policy strategy? The report discusses pending and possible proposals for U.S. FTAs, relevant legislation, and other congressional interest in U.S. FTAs. The report is available at http://fpc.state.gov/documents/organization/179550.pdf .
  • "Globalization, Worker Insecurity, and Policy Approaches" notes that globalization facilitated by the information technology revolution expands international trade in a wider range of services, but also subjects an increasing number of U.S. "white-collar" jobs to outsourcing and international competition. The current wave of globalization is supported by three broad trends, the report states: (1) technology, which has sharply reduced the cost of communication and transportation that previously divided markets; (2) a dramatic increase in the world supply of labor engaged in international trade; and (3) government policies that have reduced barriers to trade and investment. Recent research examines whether these trends are creating new vulnerabilities for workers. Because the relationship between globalization and worker insecurity is complicated and uncertain, a number of different approaches may be considered if the goal is to bolster public support for U.S. trade policies, globalization, and an open world economy, the report notes. Policies involving adjustment assistance, education, tax, and trade are most commonly proposed. The report points out the view of many economists that policies that inhibit the dynamism of labor and capital markets or erect barriers to international trade and investment would not be helpful because technology and trade are critical sources of overall economic growth and increases in the U.S. living standard. The report is available at http://fpc.state.gov/documents/organization/180691.pdf .
  • "Visa Waiver Program" provides an overview of the requirements for eligibility and the history and current state of the Visa Waiver Program (VWP). The report also explains why several countries have been removed from the list of VWP countries, including Argentina and Uruguay, or placed on provisional (probationary) status, such as Belgium (which was placed on provisional status in 2003 but restored in 2005). The report is available at http://www.fas.org/sgp/crs/homesec/RL32221.pdf.

DOJ webinars on employment verification. The Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices has announced upcoming monthly webinars on employment verification issues. Workers and worker advocates may join the monthly worker/advocate track webinar, and employers/HR professionals may join the monthly employer track webinar. The employer/HR webinars are scheduled for February 22, March 21, and April 30, 2012. The worker/advocate webinars are scheduled for February 9, March 13, and April 17, 2012. For more information or to register, see http://www.justice.gov/crt/about/osc/webinars.php.

Stakeholder teleconference on consular notification of immigrant/nonimmigrant approvals. U.S. Citizenship and Immigration Services' Operations Directorate invites interested stakeholders to participate in a teleconference, "Consular Notification Process on Immigrant and Non-immigrant Approvals as Related to Visa Issuance," on Wednesday, February 1, 2012, from 2 to 3:30 p.m. eastern time. The notice is available at http://content.govdelivery.com/bulletins/gd/USDHSCIS-2467d3. For more information or to register by January 23, e-mail Donna Kane, USCIS Vermont Service Center Community Engagement Officer, [email protected], with your full name and the organization you represent.

Effects of USCIS adjudication procedures on fraud detection. The Department of Homeland Security's Office of Inspector General (OIG) has released "The Effects of USCIS Adjudication Procedures and Policies on Fraud Detection by Immigration Services Officers." The OIG interviewed 147 managers and staff, and received 256 responses to an online survey. The OIG identified a range of possible improvements to practices in areas such as performance measurement, training, and collaboration between adjudications and fraud detection staff. The report notes that USCIS has taken important steps to improve security and fraud detection, and makes 11 recommendations for improvement.

Foreign students' contribution to U.S. economy. Foreign students and their families spent more than $20 billion in the United States during the 2010-2011 academic year, according to a new NAFSA: Association of International Educators report. California, New York, and Texas welcomed the largest numbers of foreign students, and those states and others across the country benefited from spending by these students and their families on living expenses, tuition, and fees. For more information, see http://www.nafsa.org/PressRoom/PressRelease.aspx?id=29459. The report is available at http://www.nafsa.org/publicpolicy/default.aspx?id=29416.

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 profiles 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.

For more information or to order, visit http://www.greencardstories.com/.

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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: https://egov.uscis.gov/cris/processTimesDisplayInit.do

Department of Labor processing times and information on backlogs: http://www.foreignlaborcert.doleta.gov/

Department of State Visa Bulletin: https://travel.state.gov/content/visas/en/law-and-policy/bulletin.html

Visa application wait times for any post: https://travel.state.gov/content/visas/en/general/wait-times.html/

To print or download this newsletter in PDF click this link:
Litwinlaw February 1, 2012 Newsletter (PDF version)

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Disclaimer/Reminder

This e-mail does not constitute direct legal advice and is for informational purposes only. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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