WOLFSDORF IMMIGRATION NEWSLETTER – AUGUST 2009

EMPLOYMENT-BASED IMMIGRATION NEWS

1. Are you Ready for an I-9 Audit? Missed Our Initial I-9 Web Seminar? Here's Another Chance to Get Your I-9's in Order!

Don’t miss the chance to listen to the I-9 Web Seminar that has received overwhelming praise from employers. Register for the next Wolfsdorf Immigration Law Group I-9 Web Seminar on Thursday, August 20, 2009 between 10.30 am and 1:00 pm (PST). Here is what leading professionals are saying about the Wolfsdorf Immigration Law Group’s I-9 Web Seminar:

"The I-9 seminar with Wolfsdorf covered a large breadth of information in a simple and detailed fashion." -- Caroline Galbraith, Vice President of Human Resources, Rhythm & Hues Studios

"...the I-9 seminar was great! Bernie and TL were great presenters that provided useful information as far as I-9 compliance guidelines, changes in the Form I-9, auditing, and basic practices to follow. Our company is also in the process of implementing e-verify, so that section of the presentation was the most helpful. I felt that the Q&A portion was also the most informative because we were able to ask questions on the spot and received detailed responses. I would 100% attend another seminar!" -- Pam Wong, Employee Relations Specialist, Comcast Entertainment Group

“With the maze of new I-9s requirements, this Webinar is an absolute must for all companies. The information was practical, relevant and incredibly timely. We thought the Q and A session was especially informative and really helped us focus on ensuring our policies and procedures are current.” -- Abby Walsh, General Counsel, CBOL Corporation

"I thought the webinar was excellent, I learn something new every time...Would love for webinar’s like this to be done regularly, on all topics as [I] always have so many questions about visas, forms, etc." -- Jamie Miller, HR - News Corporation

“The information provided will certainly make the entire I-9 process easier and more efficient for me.” -- Manny, Human Resources, Twentieth Century Fox

"This program is excellent and provides critical guidance to H.R." -- Sandra, H.R. Director at major apparel company

For more information and to register please click here.

2. USCIS Announces Reopening of FY 2009 H-2B Filing Period

On August 6, 2009, USCIS announced that it has reopened the fiscal year 2009 H-2B petition filing period and will immediately accept petitions. The H-2B program allows U.S. employers to bring foreign nationals to the U.S. to fill temporary nonagricultural jobs for which there is a shortage of available U.S. workers. Typically, H-2B workers fill labor needs in occupational areas such as education, construction, health care, landscaping, manufacturing, food service/processing, and resort/hospitality services.

For more information, please visit: http://www.uscis.gov/USCIS/Office of Communications/Press Releases/FY 09/QA_USCIS_Reopens_H-2B_Filing.pdf

3. USCIS Resumes Premium Processing for Nonimmigrant Religious Workers

After being suspended for several years, USCIS announced that it has resumed premium processing service for nonimmigrant religious worker petitions filed by certain R-1 petitioners. Only those petitioners who have successfully passed an on-site inspection are eligible to file under Premium Processing Service.

The notice is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=8b3dcb29f99b2210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

 A related Q&A is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=3f4ecb29f99b2210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

Information on how to use premium processing service is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ebaf0c594dafd010VgnVCM1000000ecd190aRCRD&vgnextchannel=54519c7755cb9010VgnVCM10000045f3d6a1RCRD.

4. State Dept. Announces Revised Exchange Visitor Skills List

The Department of State recently released a cable sent to the field in June 2009 announcing the revised 2009 J-1 Exchange Visitor Skills List. Exchange visitors who entered the U.S. on a J-1 visa before June 28, 2009, will continue to be governed by the 1997 Exchange Visitor Skills List, as amended, only if their country remains on the revised 2009 list. Exchange visitors whose countries were removed from the revised 2009 skills list are retroactively not subject to the two-year home residence requirement based on the Exchange Visitor Skills List, even if they entered the U.S. before the effective date.

The DOS cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4548.html. The revised list was published in the Federal Register at http://edocket.access.gpo.gov/2009/pdf/E9-9657.pdf.

5. USCIS Issues Guidance to Employers Whose H-1B Petitions for Health Care Specialty Occupations Are Denied

U.S. Citizenship and Immigration Services (USCIS) issued guidance on July 17, 2009, to certain employers who received a denial of Form I-129, Petition for Nonimmigrant Worker, requesting H-1B classification for a beneficiary to practice in a health care specialty occupation before May 20, 2009.

If the I-129 was denied solely on the basis that the beneficiary did not possess a master's or higher degree in the field, the petition may be reopened on service motion and will be adjudicated in accordance with the May 20, 2009, memorandum on "Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation" (see http://www.uscis.gov/files/nativedocuments/health_care_occupations_20may09.pdf). That memo provides clarification on the standards for H-1B health care specialty occupations. USCIS will only review denials of petitions for which it has received a written request for review from the petitioning employer or its representative.

Employers whose I-129 petitions were denied on the above basis should send an e-mail to the USCIS Service Center that issued the denial to request review. An affirmative request for review from the petitioner or its representative is required to expedite this process, USCIS said. The agency said that it is providing a "special accommodation to the public" by initiating Service Motions to Reopen (upon receiving an e-mail request) in lieu of requiring petitioners to file an appeal. USCIS is not requiring petitioners to submit an appeal fee or any other fee in this instance.

Requests should include "PT/OT Service Motion Request" in the subject line of the e-mail, and will be accepted through August 14, 2009. Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the California Service Center should be e-mailed to: csc-ncsc-followup@dhs.gov.

Requests for review of H-1B health care specialty occupation petitions that were adjudicated at the Vermont Service Center should be e-mailed to: vsc.ncscfollowup@dhs.gov.

Affected petitioners requesting USCIS review of their H-1B petitions are not required to submit a copy of the May 20, 2009, memorandum, but should explain how the beneficiary meets the standards set forth in that memorandum. Also, as with the reopening on a Service Motion, USCIS must be satisfied before approval that the beneficiary is currently eligible to practice in his or her respective health care occupation in the state of intended employment. USCIS advises petitioners to document this evidence. In any case where USCIS cannot make a final decision on the record before it, USCIS may request additional information. If the petition was denied upon additional grounds, or if the petitioner fails to submit requested evidence of the beneficiary's continuing eligibility, the original denial of the case will be affirmed.

The USCIS memo is available at http://www.uscis.gov/files/article/h-1b_health_care_professionals_17jul09.pdf.

6. DHS Secretary Announces Support for Federal Contractor E-Verify Rule, Intention to Rescind No-Match Rule

On July 8, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano announced the Obama administration's support for a delayed regulation that will award federal contracts only to employers who use E-Verify to check employees' work authorization. Secretary Napolitano also announced the Department's intention to rescind a Social Security "No-Match" rule in favor of the E-Verify system.

Following the previous announcement of the delay in the effective date of the new E-Verify rule until September 8, 2009, U.S. Citizenship and Immigration Services (USCIS) instructed federal contractors not to use E-Verify to verify current employees until the rule becomes effective and they are awarded a contract that includes the Federal Acquisition Regulation's E-Verify clause. The new final E-Verify rule will require federal contractors to agree, through language inserted into their federal contracts, to use E-Verify to confirm the employment eligibility of all persons hired during a contract term, and to confirm the employment eligibility of federal contractors' current employees who perform contract services for the federal government within the U.S. A DHS press release said the Obama administration intends to "push ahead" with full implementation of the rule, which will apply to federal solicitations and contract awards government-wide starting on September 8, 2009.

The DHS also will propose a new regulation rescinding the 2007 No-Match rule, which was blocked by court order shortly after issuance and has never taken effect. That rule established procedures that employers could follow if they receive Social Security no-match letters or notices from DHS that call into question work eligibility information provided by employees. These notices most often inform an employer many months or even a year later that an employee's name and Social Security Number provided for a W-2 earnings report do not match SSA records, often due to typographical errors or unreported name changes. The DHS said that E-Verify "addresses data inaccuracies that can result in No-Match letters in a more timely manner and provides a more robust tool for identifying unauthorized individuals and combating illegal employment."

The press release is available at http://www.dhs.gov/ynews/releases/pr_1247063976814.shtm.

7. USCIS Extends TPS Designation, Work Authorization for Somalians

U.S. Citizenship and Immigration Services (USCIS) has extended the designation of Somalia for temporary protected status (TPS) for 18 months, from its current expiration date of September 17, 2009, through March 17, 2011. USCIS also automatically extended the validity of employment authorization documents (EADs) issued under the TPS designation of Somalia for six months, through March 17, 2010, to give re-registrants sufficient time to receive their new EADs after their current EADs expire.

The USCIS notice sets forth procedures necessary for nationals of Somalia, or those having no nationality who last habitually resided in Somalia) to re-register with USCIS for TPS. Re-registration is limited to persons who previously registered for TPS under the designation of Somalia and whose applications have been granted by, or remain pending with, USCIS. The 60-day re-registration period began on July 27, 2009, and will remain in effect until September 25, 2009.

The notice is available at: http://edocket.access.gpo.gov/2009/pdf/E9-17862.pdf.

 A related Q&A is available at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=7862cb29f99b2210VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD

FAMILY-BASED IMMIGRATION NEWS

8. USCIS Provides Guidance on I-751s Filed Before Termination of Marriage

Donald Neufeld, U.S. Citizenship and Immigration Services Acting Associate Director, sent a memo to the field on I-751s filed before the termination of a marriage. The memo provides guidance on how to adjudicate an I-751 petition if the conditional permanent resident and petitioning spouse are legally separated or have initiated divorce or annulment proceedings, but the marriage has not been terminated.

The memo is available at http://www.uscis.gov/files/nativedocuments/i-751_Filed_%20Prior_Termination_3apr09.pdf

9. Ninth Circuit Finds Sponsor Did Not Qualify Because Not Domiciled in U.S.

In an opinion on July 9, 2009, the U.S. Court of Appeals for the Ninth Circuit found that substantial evidence supported the Board of Immigration Appeals' determination that a South Korean's U.S. sponsor (and husband) did not qualify as a sponsor because he was not domiciled in the U.S. At the time of the adjustment of status hearing in 2001, the sponsor/husband had resided in Japan for three years, owned no property in the U.S., and had a personal bank account in Japan. He visited his wife in Hawaii three times in three years: once for a week, the second time for three to four days, and the last time to testify before the immigration judge. He stated that his long-term plan was to return to Hawaii and open a business, but he could not identify the specific date of his return.

The opinion is available at http://www.metnews.com/sos.cgi?0709%2F07-74420.

IMMIGRATION AND CUSTOMS ENFORCEMENT NEWS

10. ICE Announces Immigration Detention Reforms

 On August 6, 2009, ICE announced planned reforms to overhaul the immigration detention system to move away from a jail-oriented approach, which relies on excess capacity in penal institutions. The Fact Sheet states that ICE will create an Office of Detention Policy and Planning, and design facilities located and operated for immigration detention purposes.

For more information go to http://www.ice.gov/pi/news/factsheets/2009_immigration_detention_reforms.htm.

CONSULAR PROCESSING UPDATES

11. State Dept. Introduces Online Nonimmigrant Visa Application Form

The Department of State recently posted a cable sent to the field in May 2009 introducing the new DS-160 Web-based nonimmigrant visa application form, which is part of the Visa Office's effort to automate the visa process to the extent possible. DOS noted that at least 12 posts (including some Mexican and Canadian posts, Dublin, Hamilton, Hong Kong, and Tripoli) currently require applicants to use the DS-160. This summer, the agency is expanding DS-160 use to two additional posts in Mexico, as well as Australia. DOS hopes to have it available to all posts (and in the above languages) by the end of 2009. Current server capacity, however, does not allow DOS to expand DS-160 use more rapidly.

The new form incorporates all of the current NIV forms (DS-156, 157, 158, 156K, 3032, and parts of the E visa application) into one interactive format, and allows applicants to upload a photo. It is hosted on the Consular Electronic Application Center, which eventually will host online immigrant visa and passport applications, online fee payments, "possible queuing systems," and an online appointment system. The form is available in English and Spanish, but translations into Arabic, Japanese, Chinese, Russian, Serbian, and French are being developed.

The DOS cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4547.html.

12. Dept. Updates Visa Medical Examination Forms

The Department of State recently released a cable sent to the field in June 2009 listing the forms and noting that all posts should begin using the DS-2053, DS-3024, DS-3026, and DS-3025 forms immediately, and discontinue use of any older version of these forms. Medical exams that have been completed using the older version of the forms, however, do not have to be repeated.

Updated visa medical forms are now being used. The forms are:
• DS-2053 - Medical Examination for Immigrant or Refugee Applicant (1991 TB TIs)
• DS-2054 - Medical Examination for Immigrant or Refugee Applicant (2007 TB TIs)
• DS-3024 - Chest X-Ray and Classification Worksheet (1991 Centers for Disease Control (CDC) Technical Instructions (TIs) on tuberculosis (TB))
• DS-3030 - Chest X-Ray and Classification Worksheet (2007 TB TIs)
• DS-3026 - Medical History of Physical Examination Worksheet (all posts), and
• DS-3025 - Vaccination Documentation Worksheet (all posts).

The cable is available at http://travel.state.gov/visa/laws/telegrams/telegrams_4550.html.

Related information from the CDC, including CDC global TB control activities for U.S. immigration and TIs for TB screening and treatment, is available at http://www.cdc.gov/ncidod/dq/panel_2007.htm.

Other CDC information on proposed vaccination criteria for U.S. immigration, and guidelines for medical examination of immigrants, is available at http://www.cdc.gov/ncidod/dq/refugee/index.htm.

LITIGATION CORNER

13. Court Remands Case Denying Visa to Muslim Scholar

Tariq Ramadan is a Swiss-born Islamic scholar whose work focuses on the integration of Muslim beliefs with Western European culture and society. Before August 2004, he traveled regularly to the U.S., giving lectures at institutions such as Harvard and Princeton and to the Department of State, and attending meetings and conferences. As a Swiss citizen, Ramadan was eligible to participate in the Visa Waiver Program (VWP). Thus, Ramadan did not need to apply for a visa to enter the U.S. for these short engagements.

In January 2004, Ramadan accepted a tenured teaching position at the University of Notre Dame. Notre Dame submitted an H-1B visa petition on Ramadan's behalf, which was approved in May 2004. Ramadan made arrangements for the move, scheduled for early August 2004. On July 28, 2004, however, the U.S. Embassy in Bern revoked his visa approval without an explanation. In response to press inquiries, a Department of Homeland Security (DHS) spokesperson stated that the basis for the revocation was a provision of the Immigration and Nationality Act (INA) that then permitted exclusion of prominent individuals who endorse or espouse terrorist activity. The Government later denied that this "endorse or espouse" provision provided the grounds for the revocation.

The consulate advised Ramadan that he could re-apply for a visa. Notre Dame accordingly filed a second H-1B visa petition on October 4, 2004. By December 13, 2004, the DHS had not yet acted on the second petition, and on that date Ramadan resigned from the position at Notre Dame. On December 21, 2004, having been informed about the resignation, the DHS revoked the renewed H-1B petition. After this revocation, Ramadan could no longer take advantage of the VWP that had authorized his previous temporary entries.

On September 16, 2005, Ramadan applied for a B visa to enter the U.S. for a short period of time to attend conferences. According to Ramadan, he was interviewed by consular and DHS officials at the U.S. Embassy in Bern, Switzerland, in 2005. He was questioned about his political views and associations. Ramadan informed officials that, between 1998 and 2002, he had donated approximately $1,336 to the Association de Secours Palestinien (ASP), which was designated by the U.S. Treasury Department as a terrorist organization due to its funding of Hamas. Ramadan received a telephone call on September 19, 2006, and a letter shortly thereafter, informing him that the consulate had denied his petition because he had provided material support to a terrorist organization. Consular officials based this decision on a security advisory opinion, Ramadan's interviews, and "additional information provided by Washington."

On January 25, 2006, plaintiffs filed suit in the District Court challenging Ramadan's ongoing exclusion from the U.S. The three plaintiff organizations (the American Academy of Religion, the American Association of University Professors, and the PEN American Center) appealed the denial of a visa to Ramadan on the grounds that it violated their First Amendment right to have Ramadan share his views with the organizations and with the public. The U.S. government contended that the visa was properly rejected on the ground that Mr. Ramadan's contributions to the ASP, which provided some financial support to Hamas, rendered him inadmissible. The government prevailed, and the plaintiffs filed an appeal with the U.S. Court of Appeals for the Second Circuit.

On July 17, 2009, the court of appeals remanded the case to the district court for further proceedings. Among other things, the Second Circuit concluded that the record did not establish that the consular officer who denied the visa confronted Ramadan with the allegation that he had knowingly rendered material support to a terrorist organization, thereby precluding an adequate opportunity for Ramadan to attempt to satisfy the statutory provision that exempts a visa applicant from exclusion under the "material support" subsection if he "can demonstrate by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization."

The opinion is available at http://www.aclu.org/pdfs/safefree/americanacademyofreligion_secondcircuitruling.pdf.

14. Tata America's Foreign Workers in U.S. Win Right To Court Hearing

The U.S. Court of Appeals for the Ninth Circuit has denied Tata America International Corp.'s attempt to compel arbitration in Mumbai, India, and dismiss a class action by Tata's noncitizen U.S. employees, who had been required to sign over their federal and state tax refund checks to Tata. The suit, Vedachalan v. Tata America International Corp., included a proposed class of thousands of current and former noncitizen U.S. employees of Tata working in the U.S.

According to plaintiffs' representative Lieff Cabraser Heimann & Bernstein, LLP, the complaint claims that Tata has paid its employees less than promised; has failed to pay its employees overtime pay and has misclassified them as exempt from overtime; and has failed to compensate employees for earned but unused vacation pay. The complaint alleges further that Tata required its noncitizen U.S. employees to sign power of attorney agreements delegating an outside agency to calculate and submit each employee’s tax return to state and federal authorities. Tata then required its noncitizen employees who received tax refunds from state and federal tax authorities to endorse the tax refund checks and send them to Tata.

A press release announcing the ruling is available at http://www.lieffcabraser.com/press_releases/20090731-lawsuit-against-tata.htm, and the decision is available at http://www.lieffcabraser.com/pdf/20090730-tata-order.pdf. Additional information on the lawsuit and related links are available at http://www.lieffcabraser.com/lawsuitagainsttata.htm.

GLOBAL IMMIGRATION NEWS

15. Canadian Immigration Law Update

During the past year, Citizenship and Immigration Canada (CIC) has made significant changes to the Federal Skilled Worker application process, including the eligibility criteria. Most notably, CIC dramatically restricted the number of occupations under which skilled workers may be eligible to apply for Canadian permanent residence from hundreds of occupations to a meager 38, listed at http://www.cic.gc.ca/english/immigrate/skilled/apply-who-instructions.asp.

CIC also introduced a new inland skilled worker permanent residence application category designed to facilitate and permanently integrate workers already in Canada. This inland permanent residence application process applies to students and workers who have obtained experience in Canada in occupations that require college education, apprenticeship training, a university education, or management experience.

CIC has recognized that integration is an important aspect of the skilled worker program. To facilitate immigrant integration, CIC's new criteria emphasizes language proficiency (in English or French) and occupations in demand, either because they are set out in the list noted above or because the foreign worker has gained the requisite minimum experience in Canada.

The various Federal and Inland Skilled Workers Application changes reflect CIC's position that a foreign national's integration into Canada is best achieved through employment. Although this position has not translated to date into the facilitation of work permits for foreign nationals outside of Canada, it has resulted in a few new work permit policies that also are noteworthy: (1) work permits for spouses of foreign workers within a higher skill level range, (2) work permits for spouses of full-time students in Canada, (3) longer post-graduate work permits, and (4) work permits for working-age dependent children of workers destined for certain provinces.

Notwithstanding the occupational restrictions set out above, Canada remains a good immigration alternative to the U.S. for foreign nationals seeking permanent immigration status. Foreign nationals employed in one of the 38 occupations listed above with proficiency in English or French may have a good likelihood of immigrating to Canada, even if they no longer have legal status in the U.S. Likewise, foreign nationals, with skilled job offers in Canada and language proficiency, may qualify for immigration regardless of whether their occupation is one of the listed 38 occupations.

OTHER IMMIGRATION UPDATES

16. Visa Waiver Program Emergency/Temporary Passports Must Be Electronic, CBP Says

All Visa Waiver Program (VWP) emergency or temporary passports now must be electronic passports (e-Passports) to be eligible for travel to the U.S. without a visa. This includes VWP applicants who present emergency or temporary passports to transit the U.S. An e-Passport contains an integrated chip that stores biographic data, a digitized photograph, and other information about the bearer, and is distinguished by a gold-colored symbol on the passport’s front cover. VWP applicants arriving in the U.S. with a non-compliant passport may be required to undergo further processing and/or denied admission. U.S. Customs and Border Protection (CBP) may exercise discretion at the ports of entry in cases of medical or other emergency travel.

The CBP notice released July 14, 2009, contains additional country-by-country details and is available at http://www.cbp.gov/xp/cgov/travel/id_visa/business_pleasure/vwp/epssprt_vwp.xml.

FIRM NEWS

17. A New Addition to the Wolfsdorf family

We are proud to announce the birth of Jacob Rafael Sostrin. He was born on August 7, 2009 at around 5:25 p.m. to proud parents, Rita and Josh Sostrin. Jacob weighed 9 lbs. 5 oz.

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/jsps/ptimes.jsp

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

Department of State Visa Bulletin: http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

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The Wolfsdorf Immigration Law Group is one of the largest immigration boutique firms in the United States. With offices on both the east and west coasts, the firm serves an extensive and diverse client base, ranging from Fortune 500 corporations to entertainers and leading academic institutions. Our large and dedicated staff of 50 employees ensures prompt and expert attention to your immigration law matters. For more information about any of the above-mentioned issues, or any immigration-related questions or concerns, please contact our team of professionals or your assigned Wolfsdorf professional at 1(800)VISA-LAW or (310)570-4088/(212) 899-5040 or contact us via email at visalaw@wolfsdorf.com

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