WOLFSDORF IMMIGRATION LAW GROUP
SEPTEMBER 2009 NEWSLETTER
BUSINESS IMMIGRATION NEWS
1. Employment-Based Third Preference Categories Available but Further Backlogged for October 2009
The Department of State's Visa Bulletin for October reflects a return of Third Preference employment-based visa availability with the opening of the new Fiscal Year. However, visa numbers are still heavily backlogged, with visas available for Indian nationals with priority dates on or before April 15, 2001; for Chinese nationals on or before February 22, 2002; for Mexican nationals on or before May 1, 2002; and for nationals of all other countries (including the Philippines) on or before June 1, 2002. Prior to the new October 2009 bulletin, Third Preference employment-based visas have been unavailable since April 2009. The October numbers represent even further retrogression in this visa category.
The latest Visa bulletin is available at http://travel.state.gov/visa/frvi/bulletin/bulletin_4575.html.
2. Are you Ready for an I-9 Audit? Missed Our Prior I-9 Web Seminars? 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 being held on Thursday, October 8, 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 contact Art Rivadeneyra at art@wolfsdorf.com.
3. OMB Extends I-9 Approval to August 31, 2012
U.S. Citizenship and Immigration Services (USCIS) announced on August 27, 2009, that the Office of Management and Budget has extended its approval of Form I-9 (Employment Eligibility Verification Form) to August 31, 2012. Consequently, USCIS has amended the form to reflect a new revision date of August 7, 2009.
Employers may use the I-9 with a revision date of either August 7, 2009, or February 2, 2009. The revision dates are located on the bottom right-hand portion of the form.
The announcement is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/August%202009/update_I-9_extension0827.pdf.
4. DHS Proposes To Rescind Social Security No-Match Rule; SEVIS Data To Be Integrated Into E-Verify
On August 19, 2009, the Department of Homeland Security (DHS) proposed to rescind the amendments promulgated on August 15, 2007, and October 28, 2008, relating to procedures that employers may take to acquire a safe harbor from receipt of no-match letters. The U.S. District Court for the Northern District of California had enjoined implementation of the 2007 final rule on October 10, 2007. After further review, DHS said it plans to focus its enforcement efforts relating to the employment of unauthorized workers on increased compliance through improved verification, including participation in E-Verify, the ICE Mutual Agreement Between Government and Employers (IMAGE), and other programs.
DHS noted that in fiscal year 2010, U.S. Citizenship and Immigration Services plans to improve the E-Verify system's ability to automatically verify international students and exchange visitors through the incorporation of ICE's Student and Exchange Visitors Information System (SEVIS) data into E-Verify. By incorporating SEVIS nonimmigrant student visa data into the automatic initial E-Verify check, the number of students and exchange visitors who receive initial mismatches should be reduced, DHS said. In 2010, ICE will launch a new version of SEVIS (SEVIS II), which will include employment eligibility information that E-Verify will be able to access electronically. Currently, the SEVIS database is checked manually by immigration status verifiers after an initial mismatch occurs.
DHS's proposed rule is available at http://edocket.access.gpo.gov/2009/pdf/E9-19826.pdf.
5. USCIS Reopens FY 2009 H-2B Petition Filing Period
On August 6, 2009, U.S. Citizenship and Immigration Services (USCIS) reopened the fiscal year (FY) 2009 H-2B petition filing period and announced that it will immediately accept new H-2B 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.
Although on January 7, 2009, USCIS announced that it had accepted and approved a sufficient number of H-2B petitions to meet the congressionally mandated annual cap of 66,000, the Department of State received far fewer than expected requests for H-2B visas and, as a result, has issued only 40,640 H-2B visas for FY 2009 to date. This means that approximately 25,000 visas could go unused because they have not been granted. Because of the low visa issuance rate, USCIS is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.
The normal (non-premium processing) adjudication timeframe for H-2B petitions is 60 days. USCIS said it will make visa numbers available to petitions in the order in which the petitions are filed. However, because H-2B petitions (Forms I-129) for FY 2009 visas must be received, evaluated, and adjudicated by the FY 2009 deadline of September 30, 2009, USCIS said it cannot guarantee approval of any H-2B petition by that date. The agency therefore encourages employers to file as soon as possible and to request premium processing by filing a Form I-907 and submitting the $1,000 premium processing fee, which will allow for expedited adjudication.
The USCIS notice, which includes instructions on how to qualify for a FY 2009 H-2B cap number, is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/August%202009/h-2b_petitions_fy09.pdf. A related Q&A is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/QA_USCIS_Reopens_H-2B_Filing.pdf. Information on how to use premium processing service is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=ebaf0c594dafd010VgnVCM1000000ecd190aRCRD&vgnextchannel=54519c7755cb9010VgnVCM10000045f3d6a1RCRD. A USCIS guide to hiring a foreign national for short-term employment in the U.S. is available at http://www.uscis.gov/files/article/E1eng.pdf.
6. USCIS Clarifies Regulatory Requirements for Filing H-2B Petitions by Certain Associations and Their Members
U.S. Citizenship and Immigration Services (USCIS) issued a clarification on August 28, 2009, to associations and their members of certain regulatory requirements for filing petitions for H-2B classification on behalf of foreign workers. USCIS said it has noticed a particular type of filing error in many H-2B petitions filed by certain associations on behalf of their members. Rather than filing an individual petition with USCIS, some employers who are members of an association have sought H-2B non-agricultural workers via a "master" petition filed by their association.
USCIS noted that a "master" petition is a petition that:
• Is filed by an association (listing the association as petitioner) on
behalf of several of its member-employers; and
• Includes multiple temporary labor certifications that have been issued by
the Department of Labor (DOL) for each individual member-employer, rather
than a single temporary labor certification certified for the particular
association itself as an employer or "joint employer."
USCIS said it recognizes that the facts of each case may be different, but that association member-employers generally should file a petition for H-2B classification directly and separately (listing themselves as the petitioner) with USCIS, rather than through a "master" petition filed by an association (listing the association as the petitioner) on behalf of several of its members. Petitions filed by associations that fail to meet the petitioner requirements for H-2B classification will be denied, USCIS warned.
The clarification, which includes discussion and analysis of the reasons why H-2B petitions filed by associations on behalf of their employer members generally would not qualify for H-2B classification, is available at http://www.uscis.gov/USCIS/Office%20of%20Communications/Press%20Releases/FY%2009/August%202009/h2b-filed-by-associations.pdf.
7. Congress Examines Foreign Investment, Verification, Real ID Issues At Recent Hearings
The Senate and House recently held hearings on various employment-based immigration issues:
• The Senate Judiciary Committee held a hearing on July 22, 2009, "Promoting Job Creation and Foreign Investment in the United States: An Assessment of the EB-5 Regional Center Program." Sen. Patrick Leahy (D-Vt.) noted in his opening statement that the EB-5 Immigrant Investor Regional Center Program is set to expire at the end of September, and that making the program permanent "is a critical first step to its continuing success." Sen. Leahy noted that the program "has been responsible for the investment of hundreds of millions of dollars, and the creation of tens of thousands of jobs in American communities since 1993. The program has paved the way for ski resort expansion in Vermont, dairy operations in Iowa, energy development in Oklahoma and Texas, and the manufacture of hurricane-resistant housing in Alabama. These are just a few examples of projects financed by foreign investment through the Regional Center program, and all indications are that interest in the program is growing." Witnesses at the hearing included Michael Dougherty, Robert Kruszka, Alliance of Business Immigration Lawyers member Stephen Yale-Loehr, William Stenger, and Ron Drinkard. Their testimony, and Sen. Leahy's statement, are available at http://judiciary.senate.gov/hearings/hearing.cfm?id=3998.
• The Senate Judiciary Committee held a hearing on July 20, 2009, "Time Change - Ensuring a Legal Workforce: What Changes Should Be Made To Our Current Employment Verification System?" Sen. Russ Feingold (D-Wis.) said in his opening statement that he is concerned about recent efforts to make E-Verify mandatory and to expand its use to federal contractors "without first fixing the current problems with the system." He noted that according to a 2006 report by the Social Security Administration's Inspector General, "the data set on which E-Verify relied contains errors in 17.8 million records, affecting 12.7 million U.S. citizens. If E-Verify becomes mandatory before these errors are fixed, millions of Americans could be misidentified as unauthorized to work." Witnesses at the hearing included Rep. Luis Gutierrez, Michael Aytes, James Ziglar, and Lynden Melmed. Their testimony, and Sen. Feingold's statement, are available at http://judiciary.senate.gov/hearings/hearing.cfm?id=3982.
• The Senate Committee on Homeland Security and Governmental Affairs held a hearing on July 15, 2009, "Identification Security: Reevaluating the Real ID Act." Witnesses at the hearing included Janet Napolitano, Jim Douglas, Stewart Baker, Leroy Baca, David Quam, and Ari Schwartz. Their testimony, and committee member statements, are available at http://hsgac.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=3d9a52cd-c442-4dee-9a1f-b02ed3b38000.
The House of Representatives' Committee on Oversight and Government Reform held a hearing on July 23, 2009, "E-Verify: Challenges and Opportunities." Witnesses at the hearing included Angelo Amador, David Rust, Gerri Ratliff, and Jena Baker McNeill. Their testimony is available at http://governmentmanagement.oversight.house.gov/story.asp?ID=2552.
OTHER IMMIGRATION NEWS
8. DHS Announces New Directives on Border Searches of Electronic Media
On August 27, 2009, Department of Homeland Security (DHS) Secretary Janet Napolitano announced new directives to enhance and clarify oversight of computer and other electronic media searches at U.S. ports of entry. The new directives address the circumstances under which U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) can conduct border searches of electronic media consistent with the Department’s authority to search other sensitive non-electronic materials, such as briefcases, backpacks and notebooks, at U.S. borders.
DHS said the new directives will also allow the agency "to develop
automated, comprehensive data collection and analytic tools to facilitate
accurate, thorough reporting on electronic media searched at the border, the
outcomes of those searches and the nature of the data searched."
Between October 1, 2008, and August 11, 2009, CBP encountered more than 221
million travelers at U.S. ports of entry. Approximately 1,000 laptop
searches were performed during that time. Of those, 46 were "in-depth."
Among other things, related CBP guidance issued on August 20, 2009, notes:
Officers may encounter materials that appear to be legal in nature, or an individual may assert that certain information is protected by attorney-client or attorney work product privilege. Legal materials are not necessarily exempt from a border search, but they may be subject to the following special handling procedures: If an Officer suspects that the content of such a material may constitute evidence of a crime or otherwise pertain to a determination within the jurisdiction of CBP, the Officer must seek advice from the CBP Associate/Assistant Chief Counsel before conducting a search of the material, and this consultation shall be noted in appropriate CBP systems of records. CBP counsel will coordinate with the U.S. Attorney's Office as appropriate.
Other possibly sensitive information, such as medical records and work-related information carried by journalists, shall be handled in accordance with any applicable federal law and CBP policy.
Officers encountering business or commercial information in electronic devices shall treat such information as business confidential information and shall protect that information from unauthorized disclosure. Depending on the nature of the information presented, the Trade Secrets Act, the Privacy Act, and other laws, as well as CBP policies, may govern or restrict the handling of the information. Any questions regarding the handling of business or commercial information may be directed to the CBP Associate/Assistant Chief Counsel.
Information that is determined to be protected by law as privileged or sensitive will only be shared with federal agencies that have mechanisms in place to protect appropriately such information.
The CBP guidance also notes that an officer at the border may "detain" electronic devices or copies of information contained in them for "a reasonable period of time to perform a thorough border search," which may take place either on-site or at another location. The guidance states that unless extenuating circumstances exist, the detention of such devices ordinarily should not exceed five days and should be completed "as expeditiously as possible." Supervisory approval is required for detaining electronic devices, or copies of information contained in them, for continuation of a border search after an individual's departure. Port Director, Patrol Agent in Charge, or other equivalent level manager approval is required to extend any such detention beyond five days.
The DHS notice and CBP guidance are available at http://www.aila.org/content/default.aspx?docid=29899.
GLOBAL IMMIGRATION NEWS
9. Belgian Corporate Immigration Update
The Belgian regulations regarding corporate immigration have been updated on a regular basis since 2007.
The Belgian regulations are influenced by European Union (EU) legislation. Citizens from almost all EU/European Economic Area (EEA) Member States (Austria, Belgium, Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden and the United Kingdom), as well as some of their family members, can now work in Belgium without a work permit on the basis of their citizenship. However, this does not apply to Bulgaria and Romania, which joined the EU on January 1, 2007. Nationals of those two countries still need to obtain a work permit to work in Belgium until December 31, 2011. Until that time, Bulgarian and Romanian citizens can gain easier access to the Belgian labor market if they work in a "labor shortage profession."
The changes to corporate immigration legislation also reflect the need to
meet business needs. For instance, if a foreign employee can be considered
to be key personnel or, effective from May 29, 2009, executive-level
personnel employed by Belgian headquarters of a multinational company or of
a group of companies, he or she will not need a work permit, provided that
he or she earns at least 59.460 EUR (amount for 2009) gross on a yearly
basis. To qualify as Belgian headquarters, several conditions, linked to tax
and corporate law, must be met. This exemption is not limited in time.
Social security is an important aspect of corporate immigration. Belgium has
been quite active over the past few years in negotiating and entering into
bilateral social security agreements with several countries. One of these
countries is India. Belgium and India reached a bilateral agreement on
social security on November 3, 2006. The "Agreement of Social Security
between the Kingdom of Belgium and the Republic of India" was approved by
the Act of February 12, 2009, and was published in the Belgian State Gazette
on August 21, 2009. The agreement, which took effect on September 1, 2009,
allows a Belgian or Indian employee (i) who is employed by a Belgian or
Indian employer, (ii) who pays contributions under the Belgian or Indian
legislation, and (iii) who is posted to India or Belgium, to remain subject
to the Belgian or Indian legislation regarding social security for
employees, provided that the foreseeable duration of the work does not
exceed, in principle, 60 months.
10. International Educators Ask President To Restore Academic Travel To Cuba
NAFSA: Association of International Educators, along with a group of 17 organizations, sent a letter on July 22, 2009, to President Obama urging him to remove restrictions on academic travel to Cuba. The letter cites the benefits of academic exchanges and notes that opportunities for Americans to study abroad in Cuba have declined precipitously since the Bush administration imposed restrictions on academic travel to Cuba in 2004. NAFSA noted that 220 American college students studied in Cuba during the 2006-2007 academic year; three years earlier, 10 times as many students had done so. The letter also supports granting U.S. visas to Cubans coming to the U.S. for exchange purposes, and a policy favoring academic, cultural, religious, sports, and professional visits. The letter further urges Cuban authorities to grant exit visas for students and scholars accepted by U.S. academic institutions.
The letter is available at http://www.nafsa.org/_/File/_/POTUS_Cuba_July_09.pdf.
FIRM NEWS
Bernie Wolfsdorf, National AILA President and firm founder, addressed the U.S. Consulate in Ciudad Juarez, Mexico (the world’s largest U.S. Consulate) on the prospects and likely content for comprehensive immigration reform.
Attorneys Avi Friedman, Tien-Li Loke Walsh and Bernie Wolfsdorf were named to the 2010 edition of "Best Lawyers in America."
Attorney Alex Dgebuadze presented as part of a panel discussing advanced iCERT, LCA and H-1B issues in the current economy at the AILA Southern California Chapter’s August 19, 2009 meeting in Los Angeles, California.
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/processTimesDisplay.do
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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